Governing Kenya: Public Policy in Theory and Practice 3030617831, 9783030617837

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Governing Kenya Public Policy in Theory and Practice Edited by Gedion Onyango Goran Hyden

Governing Kenya “This volume is a major contribution to comparative policy analysis by focusing on the policy processes in Kenya, a country undergoing modernization of its economic and political institutions. Written by experts with a keen eye for the commonalities and differences the country shares with other nations, it covers a range of topics like the role of experts and politicians in policymaking, the nature of public accountability, the impact of social media on policy actors, and the challenges of teaching policy studies in the country. As a first comprehensive study of an African nation, Governing Kenya will remain a key text for years to come.” —Michael Howlett, Burnaby Mountain Chair of Political Science, Simon Fraser University, Canada “A superb example of development scholarship which sets aside ‘best practice’ nostrums and focuses on governance challenges specific to time and place while holding on to a comparative perspective. Useful to scholars and practitioners not only in Kenya but across developing areas. I strongly recommend it!” —Brian Levy teaches at the School of Advanced International Studies, Johns Hopkins University, USA, and the University of Cape Town, South Africa. “This book is an exploration of important deliberations - of interest for those of us interested in deepening the understanding of public policy theories and their application within a specific African setting.” —Wilson Muna, Lecturer of Public Policy, Kenyatta University, Nairobi, Kenya “This collection of think pieces on public policy in Kenya gives the reader theoretical and practical hooks critical to the analysis of the implementation of the sovereign policy document in Kenya, the 2010 Constitution.” —Willy Mutunga, Chief Justice & President of the Supreme Court, Republic of Kenya, 2011–2016 “Governing Kenya provides a comprehensive analysis of public policymaking in Kenya. The book integrates public policy theory with extensive empirical examples to provide a valuable portrait of the political and economic influences on policy choices in this important African country. The editors have brought together a group of significant scholars to produce an invaluable contribution to the literature on public policy in Africa.” —B. Guy Peters, Maurice Folk Professor of American Government, University of Pittsburgh, USA

Gedion Onyango  •  Goran Hyden Editors

Governing Kenya Public Policy in Theory and Practice

Editors Gedion Onyango Department of Political Science and Public Administration University of Nairobi Nairobi, Kenya

Goran Hyden Department of Political Science University of Florida Gainesville, FL, USA

ISBN 978-3-030-61783-7    ISBN 978-3-030-61784-4 (eBook) https://doi.org/10.1007/978-3-030-61784-4 © The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2021 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Contents

1 Introduction  1 Gedion Onyango and Goran Hyden 2 Africa’s Governance Imperatives: How Kenya Has Responded  7 Goran Hyden 3 The Global Nature of Policy Problems 27 Jacqueline M. Klopp and Abdullahi Boru Halakhe 4 The Powers of Agenda-Setting: The Role of Politicians and Experts 47 Winnie V. Mitullah 5 Legislative Policymaking in Kenya 65 Gedion Onyango 6 Political Parties and Public Policymaking 85 Solomon Owuoche 7 The Politics of Implementation at County Level: Realizing Devolution in Kenya103 Peter Wanyande

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Contents

8 Policy Implementation as Principal-Agent Problem: The Case of Kenya Wildlife Service121 Parita Sureshchandra Shah 9 Public Accountability: State-Society Relations in Kenya143 Gedion Onyango 10 Media and Policymaking in Kenya: Framing in Contested Public Spaces163 George Ogola 11 The Politics of External Resource Mobilization: From Foreign Aid to Foreign Investment183 Fred Jonyo 12 Taxation Systems and Public Policy in Kenya: Unpacking the Unwritten Tax Treaty Policy203 Attiya Waris and Elvis Oyare 13 Institutions and Policy Reforms in Kenya: From State to Regime Focus221 Patrick O. Asingo 14 Building and Reforming Institutions: From Technology Transfer to Policy Networks239 Eric E. Otenyo 15 Kenya: A Comparative East African Perspective257 Goran Hyden and Gedion Onyango 16 The Evolution of Public Policy Studies in Kenya279 P. Anyang’ Nyong’o 17 Teaching Public Policy in Kenya: Approaches and Current Issues299 Patrick O. Alila and Goran Hyden Index319

Notes on Contributors

Patrick  O.  Alila holds a PhD in Political Science/Development Administration from Indiana University, Bloomington, USA.  He has served as director of his Institute and been a guest professor at Nihon Fukushi University School of International Social Development, Nagoya, Japan; Fulbright Scholar at California Polytechnic University, San Luis Obispo; and coordinator of the UNCRD Africa Training Course for Planners. His publications include Business Systems in Kenya: Institutions and Interactions, with D. McCormick and M. Omosa (2007); Negotiating Social Space: East African Micro Enterprises, with P.  Pedersen (2001); and “Agricultural Policy in Kenya: Issues and Processes”, Future Agriculture Consortium Workshop 2006 IDS, University of Nairobi, also published as “Kenyan Agricultural Policy”, IDS Working Paper 327, University of Sussex. Patrick O. Asingo  [deceased on 19 August 2020] was a senior lecturer and researcher in the Department of Political Science and Public Administration, University of Nairobi, Kenya. He held an MA from the University of Nairobi and MA and PhD from The University of Kansas, USA, where he also visited as a Fulbright Scholar. Asingo was widely published in areas of elections, political behaviour, public policy, and public administration. Some of his publications include “Relative Deprivation, Protests and Voting in Kenya”, Commonwealth and Comparative Politics Journal (2018); “Policy Salience and Election Outcomes in Contemporary American Presidential Elections (1972–2000)”, Politics and Policy (2017); and “Nyanza: The Odinga vii

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Dynasty and Beyond” in Nic Cheeseman, Gabrielle Lynch and Karuti Kanyinga (eds), The Oxford Handbook of Kenyan Politics (2020). He was widely consulted by different outstanding organizations in Kenya. Abdullahi  Boru  Halakhe  has worked with, advised, and liaised with various international organizations, including the UNDP, World Bank, USAID, International Crisis Group, US State Department, European Union, and multiple governments. He is frequently interviewed on security, counterterrorism, countering violent extremism, and other conflict issues by international media and has appeared on CNN, BBC World Service, Al Jazeera, and various international and regional media outlets. Halakhe holds an MA in International Affairs from Columbia University’s School of International and Public Affairs. Goran Hyden  After receiving his PhD from Lund University, Sweden, Hyden began his political science and public administration career in the now defunct University of East Africa: Makerere (1965–1966), Nairobi (1968–1971), and Dar es Salaam (1971–1977). Before joining the University of Florida in 1986, he served as social science advisor and representative in the Nairobi-based Ford Foundation’s Regional Office for Eastern and Southern Africa during 1978–1985. He co-­edited his first book (with Robert H.  Jackson and John J.  Okumu) in 1970 titled Development Administration: The Kenyan Experience. He has authored over 20 books of his own, for example, Beyond Ujamaa in Tanzania (1980), No Shortcuts to Progress (1983), and African Politics in Comparative Perspective (2006). He served as president of the US African Studies Association in 1995 and received its Distinguished Africanist Award in 2015. He has also been chairman of the Board of the Dag Hammarskjold Foundation, Uppsala, Sweden, and the African Centre for Technology Studies, Nairobi. Fred  Jonyo holds an MA degree from the Graduate School of International Relations, Niigata, Japan, and a PhD in Political Science and Public Administration from Makerere University, Uganda. He specializes in political economy and international relations. His publications include Conflict Management in the Horn of Africa, Dimensions, Actors and Challenges in Reconstruction and Peace Building in Somalia (2018), as co-­author, The Changing Nature of Security and Intelligence in Africa: A Theoretical Perspective, Challenges and Reforms (2011), “The Influence of Institutional Factors in Access to Healthcare in Kenya”, Global Scientific

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Journal Vol. 7 Issue 9 (2019), and “Impact of Communal Resource Extraction on Economic Development: The Case of Red Sand Harvesting in Laikipia North, 2009–2016”, Journal of African Interdisciplinary Studies (JAIS), Vol. 2 No. 11 (2018). Jacqueline M. Klopp  specializes in sustainability policy and politics. She has written over 50 academic articles, policy briefs, and book chapters on land, transportation, air pollution, urbanization, and governance with a focus on Kenya. She is also a co-founder of the award-winning DigitalMatatus, DigitalTransport4Africa, and DigitalCairo projects and has served as an expert for UN-Habitat, World Bank, USAID, and World Resources Institute, among others. She has taught development policy at Columbia University’s School of International and Political Affairs while directing the school’s Economic and Political Development programme. She teaches in the sustainable development programme and co-directs the Center for Sustainable Urban Development at the Earth Institute, Columbia University. She holds a BA from Harvard and a PhD in Political Science from McGill University, Montreal, Canada. Winnie  V.  Mitullah  is a former director of her Institute. She holds a master’s degree from the University of Nairobi and a PhD in Political Science and Public Administration, University of York, UK.  She has researched, consulted, networked, and taught courses focusing on policies, institutions, and governance. Her recent publications include Achieving SDG 10: A Global Review of Public Service Inclusion Strategies for Ethnic & Religious Minorities, UNRISD (2020), “Gender Mainstreaming and Campaign for Gender Equality” in Nic Cheeseman, Karuti Kanyinga and Gabrielle Lynch (eds), Oxford Handbook of Kenya Politics (2020), Urban Governance: Transcending Conventional Urban Governance (2017), “Mainstreaming Non-motorised Transport in Policy Planning in Nairobi: Institutional Issues and Opportunities”, Journal of Sustainable Mobility, Volume 3, Issue 1, June 2016. P. Anyang’ Nyong’o  holds BA (First Class Honours) in Political Science and Philosophy from Makerere University, Kampala (1971), and MA (1974) and PhD (1977) in Political Science from The University of Chicago. He has taught at the University of Nairobi (1977–1981), El Colegio de Mexico (1971–1984), and Addis Ababa University (1984–1986) before joining the African Academy of Sciences as Head of

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Programmes from 1987 to 1992. Having been involved in the struggle against authoritarian rule in Kenya throughout his academic career, he was among the leaders who moved into multi-party politics in 1992. He was elected to Parliament that same year and has since then served in various public capacities. He was Minister for Planning and National Development (2003–2005) and Minister for Medical Services (2008–2013). He has published several books and articles on democracy, democratization, the state, and the political economy of development in Africa, for example, Popular Struggles for Democracy in Africa (1987). In 1995, he was awarded the German Africa Award for his contribution to democracy and democratization in Africa. He was a Gro Harlem Brundtland Senior Leadership Fellow in the Division of Policy Translation and Leadership Development at Harvard School of Public Health from December 2013 to March 2014. George Ogola  has published widely on media, politics, and popular culture in Kenya. He is the author of Popular Media in Kenyan History: Fiction and Newspapers as Political Actors (2017) and co-editor with Peter Anderson and Michael Williams of The Future of Quality News Journalism: A Cross-Continental Study (2016). Gedion  Onyango  holds a BA (First Class Honours) in Social Sciences (Political Science and International Relations) from Makerere University, Kampala, Uganda; MPhil in Public Administration from the University of Bergen, Norway; and a PhD in Public Administration from the University of the Western Cape, South Africa. He is an associate editor and board member for SN Business & Economics Journal (Springer) and editorial board member for the Journal on Financing for Development (University of Nairobi). His papers have been published in some of the leading public administration journals, including International Journal of Public Administration, Public Organization Review, and Economic and Political Studies. He has also authored book chapters in both published and forthcoming monographs, among others, “Policy Visibility and Implementation in Public Administration”, in Ali Farazmand (ed.), Global Encyclopedia of Public Administration, Public Policy, and Governance, Springer Publishing 2019. He has also been consulted by different organizations, including Transparency International and the World Bank.

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Eric E. Otenyo  holds a BA (Hons) from the University of Nairobi, an MA in Public Administration from Syracuse University, and a PhD from Miami University, USA.  He has authored several journal articles and books, including Ethics and Public Service in Africa (1998); Comparative Public Administration: The Essential Readings (2006); Managerial Discretion in Government: Beyond the Street Level (2007); and Trade Unions and the Age of ICTs in Kenya (2017). He serves on numerous professional boards, including Kenya Scholars and Studies Association’s (KESSA’s) advisory council. Solomon  Owuoche  holds BA and MA degrees from the University of Nairobi and a PhD in Political Science from Maseno University, Kenya. His publications include The Church in the Struggle for Democracy in Kenya (2009); as co-editor, Using the Ballot to Stop the Bullet: Electoral Processes, Conflict and Peace-Building in the Great Lakes Region (2009); and “A Political Theory Approach to Understanding Conflict in Africa”, Contemporary Security in Africa, Journal of the National Defense College, Kenya, vol. 3, No. 2. His other achievements include being invited as a visiting scholar at Warsaw University, Poland; receiving UNESCO Sponsorship for being a visiting scholar at Linkoping University, Sweden; and serving as the 2018 External Examiner at Masinde Muliro University of Science and Technology (MMUST) and Jomo Kenyatta University of Agriculture and Science (JKUAT). Also, he has wide teaching experience at Kenya’s Defense Staff College and National Defense College. Elvis Oyare  is completing his undergraduate studies in Tax Administration at the School of Law. He has already published locally on international and Kenyan tax law issues. He holds strong research and professional interests in the areas of fiscal law, governance, public finance, and development. He has researched and contributed to the publication of several journals articles and book chapters authored by Professor Attiya Waris and as a young researcher has lectured publicly on tax issues. He co-leads the rapid response team (COVID and current affairs related) at the Committee on Fiscal Studies. Parita Sureshchandra Shah  holds an MA in Environmental Planning and Management and a PhD in Biogeography, both from the University of Nairobi, and is registered as Environmental Impact and Audit Assessor with the National Environment Management Authority in Kenya. Her e­ xpertise ranges across the fields of environmental planning and management, bioge-

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ography including policies and legal frameworks, climate change, ecotourism, natural resources management, population, health, and environment. She has authored several book chapters and journal papers. Also, she has been a member of the Karura Forest Educational and Environmental Trust (KFEET) and has coordinated the Trust’s educational syllabus. Her efforts in conservation have been recognized by the Oshwal Community as well as the Jain Social Group in Kenya. She is also a trainer of trainees at the African Fund for Endangered Species (AFEW) Giraffe Centre. Peter Wanyande  holds an MA in Political Science from the University of Nairobi and a PhD in Political Science from the University of Florida, USA. He is widely published and has supervised several postgraduate students including PhD candidates. Amongst his latest publications are Devolution in Kenya: Six years of Turbulence (2019) and The implementation of Kenya’s System of Devolved Government (2015). He has worked as Expert and Advisor in government, public corporations, government task forces; constitutional commissions, and regional and international organizations such as New Partnerships for Africa’s Development (NEPAD) in addition to carrying out consultancy for UN bodies such as the UNDP. Attiya Waris  holds the unique post of Professor of Fiscal Law and Policy in East and Central Africa. She holds a PhD in Law from Lancaster University (UK) as well as two Masters of Law in Human Rights and Democratization from the University of Pretoria, South Africa, and in Business and Commercial Law from the University of London. She is a specialist in fiscal law, policy, and development and has researched and published numerous journal articles, book chapters, and books globally. Her recent book, Financing Africa (2019), endeavours to demonstrate the significance of fiscal law and development in Africa and its impact on individuals, communities, regions, and the continent in general. She is also an observer at the UN Tax Committee and was the founding Chair of the Committee on Fiscal Studies at the Law School, University of Nairobi.

List of Figures

Fig. 2.1

The evolution of modes of governance in Kenya, 1963–2020. (Source: Author) 17 Fig. 2.2 Examples of fresh accountability and fairness clauses in the constitution. (Source: Author) 19 Fig. 4.1 Political leaders and experts in African countries Local orientation. (Source: Author and editors) 54 Fig. 8.1 Graphical illustration of principal-agent relations involving the KWS. (Source: Author) 128 Fig. 9.1 Types of public accountability. (Source: Author) 145 Fig. 9.2 The public accountability system in Kenya after 2010. (Source: Author)148 Fig. 10.1 Components in contestations over definition of public in Kenya. (Source: The author) 167 Fig. 11.1 Bilateral and multilateral aid to Kenya, 1968–2011 187 Fig. 17.1 A common rendition of the policy cycle. (Source: Michael Howlett, M- Ramesh and Anthony Perl (eds.), Studying Public Policy: Policy Cycles and Policy Subsystems, New York: Oxford University Press 2009) 301

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List of Tables

Table 2.1 Table 2.2 Table 4.1 Table 4.2 Table 5.1 Table 5.2 Table 5.3 Table 5.4 Table 8.1 Table 8.2 Table 9.1 Table 9.2 Table 11.1 Table 12.1 Table 13.1 Table 13.2 Table 14.1 Table 14.2 Table 15.1 Table 15.2 Table 15.3

African countries in global indices 2019 9 Differences between nation-state and state-nation 13 Differences between elitist and pluralist approaches to problem identification 50 Three principal approaches to the study of power in policymaking56 Legislative functions and types in policymaking and how they are performed 67 Articles on legislatures in developing countries, 2010–2019 70 Periods of legislative development in Kenya since 1896 72 State of legislative development in Kenya 78 Main functions and roles of the Kenya Wildlife Service 129 Summary of KWS implementation of the 2012 Wildlife Policy 137 Main features of the main forms of public accountability 147 Development of Integrity systems in the context of anti-­ corruption efforts 159 Comparison of foreign aid and foreign investment 186 The differences between tax evasion and tax avoidance 205 Differences between the use of state and regime in policy studies224 The three pillars of the Vision 2030 234 Three phases of institutional reform efforts in Africa 244 Kenyan counties organized in regional blocs 249 Core characteristics of East African policy regimes 263 Macroeconomic data per country 2017 267 Human development in East Africa, 2000 and 2018 (Legend: 1.0 high) 268 xv

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Table 15.4 Ease of Doing Business in East Africa, global ranking by country270 Table 15.5 Perceptions of corruption in East Africa by global rank and score (Legend: 100 very clean, 0 highly corrupt) 270 Table 15.6 East African countries as globally ranked by the form of democracy, 2019 (Total: 202 countries) 271 Table 15.7 Three main theories of policy development 272 Table 16.1 Main features of the liberal and Marxist theories of the state 281 Table 16.2 Main features of policy debates in Kenya, 1960–2020 285 Table 17.1 Overview of governance components 303

List of Boxes

Box 4.1 Box 4.2 Box 7.1 Box 10.1

President Kenyatta Facing Policy on COVID-19 Problem Definition for Kenya’s Medium-Term Plan Devolution Objectives in Kenya Controversial Provisions in the 2018 Cybercrimes Bill 

52 60 106 173

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CHAPTER 1

Introduction Gedion Onyango and Goran Hyden

Introduction Governing is the most important undertaking in any contemporary society. It not only determines the quality of life that citizens can enjoy but also sets the tone for how policies are decided and implemented. Thus, governance is about both institutions and power, both policy and politics. The literature on governance tends to fall into two main categories: one normative, the other functional. The former represented, for example, by Hyden and Bratton (1992), treats the concept as normative referring to the frame within which politics is carried out. In their perspective, governance is good or bad—for example, democratic or autocratic. It is about managing the regime and it transcends what government does. The quality of all institutions matters for a “good” society to emerge. The latter

G. Onyango (*) Department of Political Science and Public Administration, University of Nairobi, Nairobi, Kenya e-mail: [email protected] G. Hyden Department of Political Science, University of Florida, Gainesville, FL, USA e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 G. Onyango, G. Hyden (eds.), Governing Kenya, https://doi.org/10.1007/978-3-030-61784-4_1

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position, in contrast, represented, for example, by Peters and Pierre (2016) emphasizes the key role that government plays in shaping society. For them, the quality of making and implementing public policy is what counts. Ever since the Third Wave of democratization (Huntington 1991) captured the attention of scholars, the focus has been primarily on its normative and institutional dimensions. More recently, however, there has been a revival of the functional approach as confirmed, for example, in the 2017 World Development Report (World Bank 2017). While the literature still recognizes that how politics is conducted is important, what governments accomplish is getting increased attention, not the least in African countries where political leaders tend to treat “development” as more essential than “democracy”. Policy is one of the key instruments of governance. It is “public” because it is a set of activities initiated by government to achieve change, whether it refers to institutions or substantive policy issues (Peters 2015). The study of public policy, therefore, covers various facets of achieving a desired outcome: (1) an accurate definition of the problem to be tackled, (2) an appropriate formulation of how to go about it, (3) an authoritative decision to render policy legality and legitimacy, (4) a coordinated action to implement it, and (5) a review or evaluation to learn the lessons from what has been attempted. It is more than just “policy analysis” or “public administration”. Given the important role that public policy plays in shaping Africa and its development, it is a surprise that it remains an under-researched field of practice not only in Kenya but also in other African states. Most of what has been written on the subject has focused on public administration (e.g. Oyugi 1992; Adamolekun 1999). Much of it has been prescriptive with little attention to the context of public policymaking in African countries. This is especially the case with the “grey” literature, that is, studies that have been commissioned by donor agencies and think tanks working with their financial support. The two World Bank reports on policy reform in Africa are prominent cases in point (World Bank 1981, 1989). Basic research questions, therefore, abound, notably (1) how policies are made in a political context where change is called for, but institutional legacies tend to stand in the way, (2) how power and authority are distributed and shared among institutional actors in government and society, and (3) how effective policymaking is at a time when policy problems are getting increasingly complex (or wicked) and involving multiple stakeholders. These are three pertinent questions in search of answers and elaborations

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at a time when the principles of the 2010 Constitution in Kenya have largely sunk in and the country is increasingly learning to rely on institutions of its own making. Doing so takes on extra importance because there have been no attempts to analyse Kenyan policymaking systematically since the 1980s and standard textbooks based on the American or European models are surrogates of limited use. To take on this challenge, this volume brings together a team of experts, the vast majority Kenyans, with the view to better understanding the country’s public policy in theory and practice. It is foremost composed to provide an updated and relevant foundation for teaching public policy in Kenyan institutions of higher learning and institutes for training public servants, whether at national or local level, but is written in such a manner that it also serves as a useful guide for members of the public, notably in civil society and business, with an interest in how Kenya is governed. Furthermore, to add value to the analysis of the Kenyan case, the volume includes a comparison with three of its neighbours in East Africa: Rwanda, Tanzania, and Uganda. To capture the essential governance components, we adopt a wide approach to public policy. We analyse it in its political context and use as our premise that the policy process is messy and meandering. Yet, to facilitate the understanding and teaching of the subject, we like other textbooks are treating each facet of the policy process as a separate matter. Problem identification is the inevitably first step. It is how issues are defined as problems for policy attention. Before a policy is made, it needs to be designed and formulated feasibly and legitimately. This typically relies on expert knowledge, but it is not just a technical exercise. It also involves political support. Making the policy may be the prerogative of a minister or cabinet but it could also involve a wider community of stakeholders, an approach that is especially common when problems are complex and cover more than one discipline of knowledge. Implementation or execution is typically the more challenging dimension of the policy process because it requires a structured interaction of people with often different personalities and perspectives. Deviation from or even resistance to stated policy objectives is not uncommon. Finally, there is policy evaluation or review meant to assess how well the policy was carried out. The volume is structured with this ordering in mind. Following this introduction, the next chapter focuses on the principal African governance challenges and how Kenya has responded, most recently with the adoption of the 2010 Constitution. It provides the broader governance context

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within which public policy is made and identifies the factors that make this process in Kenya and other African countries quite different in several key respects from what mainstream textbooks on the subject typically argue. The following two chapters, one by Jacqueline Klopp and Abdullahi Halakhe and the other by Winnie V. Mitullah, pick up on these challenges by examining the relations between international and national actors and the perspectives they bring to the public policy process. The authors highlight the importance of a strong national position on how problems are defined to avoid being driven by external actors with their own agenda. Developing specific policy positions is not the prerogative of government only. Legislative assemblies and political parties with seats in these bodies typically provide inputs into how policies are formulated. Two chapters are devoted to how this happens in Kenya. Gedion Onyango analyses the role that the Kenyan legislature plays in public policymaking and Solomon Owuoche examines how political parties do so. While the National Assembly in Kenya is generally regarded as one of the stronger legislative bodies in Africa, it still falls short of being an effective institution when it comes to making public policy, a main reason being the weakness of the country’s political party system. Two chapters are focused on issues of policy implementation. The 2010 Constitution of Kenya has changed the institutional landscape by devolving political power to county level. This means that responsibility for crucial social and economic development matters at local level are now in the hands of county assemblies and governors with their own administration. Peter Wanyande discusses the issues of policy implementation at the county level pointing to the tensions associated with the separation of power between centre and periphery as well as between the separate branches of government at local level. Given the significant role that wildlife and biodiversity plays in the Kenyan economy—and society at large— Parita Shah applies a principal-agent perspective to discuss how different stakeholders participate in the policy process and what this means for the relations between people and animals that are often in conflict outside the boundaries of specific game reserves or national parks. She demonstrates how the global and national importance of the country’s wildlife agency generates its own “bureaucratic politics” with agents often being able to challenge their principals. This takes the volume to a more systematic analysis of state-society relations in Kenya. A second chapter by Gedion Onyango discusses issues of public accountability pointing to the challenges of how to strengthen it under the new constitutional set-up. George

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Ogola adds to this discussion by focusing on transparency and especially the role played by Kenyan media in framing issues while also serving as public watchdogs. The role that donors and investors play in public policymaking is an important dimension covered by Fred Jonyo, which is followed by an analysis of the international taxation system and how it limits the ability of the Kenyan Government to collect revenue from multinational actors operating in the country. Following the multi-chapter review of the public policy process in Kenya, highlighting many of its shortcomings, the next two chapters are devoted to issues of institutional reform. Patrick Asingo investigates the record of such reforms of the public sector since independence, while Eric E. Otenyo discusses the relevance of policy networks as a way of energizing greater and wider participation in the public policy process. The editors believe that the account of policymaking in Kenya increases in value if it is compared with the way other Africa countries go about it. Thus, Hyden and Onyango make a comparison of the policy regime in Kenya with three of its East African neighbours—Rwanda, Tanzania, and Uganda—demonstrating how each country has developed its own mode of making public policy. Since a prime objective of this volume is to provide material for teaching governance and public policy, the final two chapters are concerned with the teaching aspects of public policy. Peter Anyang’ Nyong’o traces and discusses how policy studies in Africa have evolved and changed since independence while Patrick O. Alila and Hyden provide an overview of what might go into a public policy syllabus and what the challenges are to teach the subject in Kenya in the early 2020s. Finally, we need to convey the sad news that while this volume was being finalized, one of our contributors, Patrick Odhiambo Asingo, passed on. Despite his failing health, he worked right up to his death and we are forever grateful for his willingness, commitment, and ability to participate in this project to the very end. We express our deepest condolences to Dr Asingo’s family.

References Adamolekun, Ladipo. 1999. Public Administration in Africa: Main Issues and Selected Country Studies. Lagos: Avalon Publishing. Huntington, Samuel P. 1991. The Third Wave of Democratization in the Late Twentieth Century. Norman, OK: University of Oklahoma Press.

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Hyden, Goran, and Michael Bratton, eds. 1992. Governance and Politics in Africa. Boulder, CO: Lynne Rienner Publishers. Oyugi, Walter, ed. 1992. Politics and Administration in East Africa. Nairobi: East African Educational Publishers. Peters, B. Guy. 2015. Advanced Introduction to Public Policy. Northampton, MA: Edward Elgar. Peters, B. Guy, and Jon Pierre, eds. 2016. Comparative Governance: Rediscovering the Functional Dimension of Governing. Cambridge, UK: Cambridge University Press. World Bank. 1981. Accelerated Development in Sub-Saharan Africa: An Agenda for Action. Washington, DC: The World Bank. ———. 1989. Sub-Saharan Africa: From Crisis to Sustainable Growth: A Long-­ Term Perspective Study. Washington, DC: The World Bank. ———. 2017. World Development Report 2017: Governance and the Law. Washington, DC: The World Bank.

CHAPTER 2

Africa’s Governance Imperatives: How Kenya Has Responded Goran Hyden

Introduction Public policy theory is hardly place-neutral. Being both descriptive and prescriptive, it exists in a thorny relationship with policy practice. As this volume will further illustrate, there is more than one theoretical perspective or interpretation of the way that public policy is made and carried out. Theorizing public policy, however, is also shaped by broader political parameters notably the imperatives of governance, that is, factors that policymakers cannot ignore because they are fundamental to the legitimacy of their position in power and the sustainability of the political system itself. Standard textbooks about public policy theory and practice are cast with American or European governance imperatives in mind. Democracy is taken for granted and governance is about opening and broadening political space for citizens, especially those who are disadvantaged or not yet part of the social mainstream. There is little controversy

G. Hyden (*) Department of Political Science, University of Florida, Gainesville, FL, USA e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 G. Onyango, G. Hyden (eds.), Governing Kenya, https://doi.org/10.1007/978-3-030-61784-4_2

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surrounding public policies that start from respect for civil rights and their participation in the policy process. In fact, politicians are riding on such principles for re-election. African policymakers may try to do the same, but they are faced with different governance imperatives. They cannot take democracy, nor development, for granted. They still govern democratizing and developing countries. Democracy and development are as much aspiration as practice. They have to be realized in conditions where the governance imperatives reflect the legacy of colonialism: (1) an artificially created state that reigns over multiple ethnic groups competing for political influence over public resources and (2) a society that is still largely “natural” in the sense of not being structured by the economic production process and thus lacking political parties and interest groups grounded in specific positions on public policy issues. Social cleavages tend to be vertical along ethnic or cultural lines rather than horizontal along economic and social class lines. The African governance challenge, therefore, is how African countries can enlarge space for democracy and advance a form of development that crystallizes new social formations reflecting different economic or social class interests rather than just ethnicity or clan membership. Shaping public policy along such lines is not without its own controversy but political leaders can only ignore them at their own cost. In highlighting public policymaking in these conditions, this volume will focus on the Kenyan case but, as we will also show, these conditions are more widely applicable to other countries south of the Sahara. The purpose of this chapter, therefore, is to identify these Africa-wide governance conditions and discuss how Kenya has fared in implementing the 2010 Constitution—the country’s most decisive effort since independence to address these imperatives.

The Bottomland of Global Indices The world has got used to accepting that the African countries south of the Sahara—the United Nations’ administrative definition of Africa—are at the bottom of global indices whether they measure democratic forms of governance, presence of corruption or respect for human rights. The fact that the region’s economic record has improved in GDP terms—the notion that “Africa is rising”—has done little to erase the impression that African countries have a long way to go when it comes to reaching global standards of governance and development. Referring to the last 50

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countries in each global index, Table  2.1 indicates the percentage of African countries falling in that category. There are a total of 46 countries in the south of the Sahara—just about 20 per cent of the total of 193 countries (excluding the Vatican and Palestine). Table 2.1 confirms that the African region covered here is overrepresented in the bottom ranks of these global indices, although less so with respect to economic growth. What these figures are hiding is that there are important variations among the African countries. Some like Botswana, Cape Verde, Namibia, and Seychelles rank in the upper echelons of these indices. They surpass some countries in Europe. These cases prove that African countries have the drive to overcome the structural hindrances they face. Notably, Africans are not sceptical of democracy. When asked in the Afrobarometer polls, a clear majority demand more of it (Bratton and Houessou 2014), a demand carried by civil society in many countries, including Kenya. The problem with the global indices from an African viewpoint is twofold. Decisions to rank countries on a global scale put those that start from a low point at a disadvantage. Their glass is always half-empty because they have the longest distance to the top. A more constructive approach for advancing better governance practices would be to judge countries in terms of the distance (positive or negative) they have covered within, say a five- or ten-year period. Evaluating governance on an annual—even bi-­ annual—basis tends to create an overinterpretation of single events that appear to change governance performance here and now, yet in a longer time perspective make little difference. The other part of the problem with the indices is that they tell us about the ideal or the optimal but not how countries might get there. The preoccupation with measuring the quality of institutions has marginalized the issues that were most prominent some thirty years ago, notably how democracy could be best consolidated (e.g. Linz and Stepan 1996). Thus, Table 2.1  African countries in global indices 2019 Percentage of Freedom Transparency African countries House on civil International on among 50 lowest and political corruption rights 40 Source: Author

30

UNDP Index on World Bank on human economic per development capita growth 47.5

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today we know a lot about democracy when practised in full but little about the drivers of improved governance in countries where the political imperatives are still focused on avoiding violence and ensuring a fair distribution of public resources to groups that act as communities of consumption rather than organized groups grounded in the production process. Changing the fundamental values in a democratic direction is a monumental task where society is structured that way. Setting out these conditions in greater detail and how they bear on Kenya’s effort to respond to those imperatives, therefore, is an important first step towards understanding and teaching public policy in theory and practice.

Africa’s “Natural Societies” Much of the analysis of politics and policy in Africa tends to be cast in the context of its colonial legacy. It is clear that much of what the colonial powers did during their occupation is still live practice today. There are areas in life, however, where it becomes more difficult to determine how much to attribute to the colonial legacy or the persistence of precolonial values. Montgomery (1987), in a study of public managers in southern African, found that they were more preoccupied with ensuring junior servants followed orders and showed respect for seniors than they were task-­ oriented, that is, focused on problem-solving. The question is how to explain such behaviour. Is it a reflection of working in a hierarchy put in place by the colonial masters or is it behaviour carried over from a patriarchal society? This is a question rarely asked in African policy analysis, yet as contextualization is deemed increasingly important in analysing governance and policymaking it cannot be ignored. As a former World Bank official has put it: governments and donors need to “work with the local grain”, that is, acknowledge how local context dictates policy outcome (Levy 2013). The obstacles African women face in their patriarchal societies is an important dimension of this challenge (Ossome 2018) but it goes further. It requires a closer look at the very social formations in African countries. They have been largely misinterpreted based on a standard Western model of political economy. Neo-Marxists too have uncritically applied their theory to assume the presence of social classes based on economic interest as the hegemonic order (Rodney 1972; Leys 1975; Amin 1976). Much the same applies to conventional liberal political economy, as practised notably in policy analysis sponsored by the international donor community. The

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latter focuses on charting the development path forward without much reflection on the context. The result is that the African policy landscape is full of “white elephants”, that is, donor-funded projects designed as blueprints that never materialized (Therkildsen 1988; Booth 2015). To understand these public policy failures, it is necessary to examine the prevailing social formation in Africa, its natural society. The concept of “natural society” originates in Japanese scholarship on the advancement of humankind. It refers to a society that has not yet been transformed by a social revolution that leads to the emergence of a state with the capacity to form a society in its own image (Itani 1988; Imanishi and Asquith 2002). Rural communities around Africa continue to be organized foremost as communities of consumption that place a higher priority on consumption and social reproduction than on production, much like Alexander Chayanov argued in his analysis of the Russian peasantry a hundred years ago (Chayanov [1925] 1966). Subsistence households do not engage in surplus production beyond what they need for their own consumption and reproduction. Organized as the Russian countryside was into nuclear family households, Chayanov’s point was that the greater its number of dependents, the heavier the work burden would be for remaining members of the household. This observation applies to Africa with the difference that rural households are not nuclear but linked together in the extended family and other communal ties. Farming is only one source of livelihood as members of these networks or communities draw on other sources, for example, hunting and gathering, wage labour, self-employment, or office work, to help each other ensure that no one goes hungry. As Makoto Kakeya (1976) noted with reference to African farmers, they are not specialists interested only in advancing agricultural productivity; instead, they are generalist managers of their environment, physical as well as social. Rather than “putting all eggs in one basket”, they spread their risks by engaging in multiple pursuits of income and satisfaction. This reflects the fact that African countries have not gone through a transformation to Agrarian Society whereby production becomes a specialization aimed at effective control of nature and economic expansion. Instead, it is an economy of sharing aimed at securing the subsistence of all—the “economy of affection”, as I have called it in another context (Hyden 1980). The African farming systems are influenced by “non-­ agrarian” features such as mobility and dispersion, lack of private land ownership, and a marked propensity towards diversity rather than

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uniformity (Sugimura 2004). The prevalence in many local communities of sustainable inter-cropping systems is testimony to the presence of a Natural rather than Agrarian Society. In the latter, agricultural intensification and commercialization lead to the disintegration of communal relations as well as to social stratification based on unequal land ownership. The paradox in Africa is that public policy has been based on premises associated with Agrarian rather than Natural Society, the main reason why agricultural policies have largely failed despite generous funding. Kenya is not an exception from this pattern, but some circumstances have modified the negative impact of mistaken policy initiatives. One is geographical. The vast expanses of highland savanna in and around the Rift Valley have opened opportunities for an agricultural transformation that has not happened in other areas around the Great Lakes in East Africa where people live in settled villages. The other is political. Kenya received large numbers of European settlers who developed forms of modern agriculture and demanded state institutions to support them. Thus, today there are areas, especially in the Rift Valley, where Agrarian Society is present. The dominant challenge in Kenya, however, as elsewhere in Africa, remains how to lay the foundation for a move towards an Agrarian and Industrial Society without losing the ethics associated with Natural Society. This is complicated by the fact that the state is not yet an autonomous institution capable of shaping society in its own image.

The African State-Nation Another paradox in Africa is that the state has historically emerged as the rights-holder forcing citizens to become its duty-bearers. There was no systematic notion of rights until the colonial powers brought the notion to Africa. Institutional mechanisms for holding rulers accountable in African societies before colonialism were never codified and turned into systems of individual rights. As suggested earlier, the right people had in those days was the unspoken right to food: no one could be left starving! Thus, the notion of civil and political rights, as we know it today, was brought to Africa with the establishment of the colonial state. It took time before the colonial powers extended these rights to the indigenous population, but these rights eventually became the foundation for their claim to independence. Decolonization was all about securing these rights, but the process never lasted long enough to allow for the extension of rights to the continent’s large rural population (Mamdani 1996).

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When African leaders took over the reins of government, therefore, the majority were unaware of their rights and not powerful enough to challenge the elite. Those in power could claim the moral high ground by arguing that they had won the battle over rights and that the rest of the population should obey state policies in the interest of national unity and development. This is how citizens were forced to become duty-bearers. This chasm between the liberal order under which political independence was reached and the political practice that emerged once it was granted has been captured by the late Okoth Ogendo, who described the status as “constitutions without constitutionalism” (Okoth Ogendo 1988). This governance deficit was partly a consequence of the readiness to experiment. Many African leaders did so by building regimes around inherited Western ideologies, especially socialism; others reinvented precolonial traditions, but few got it right enough to stabilize the new political order. For example, between 1960 and 1990, no less than 130 constitutions (that is roughly 3 per country) were thrown out. Since then the situation has stabilized. In the ensuing 25  years, as many as 48 new constitutions were adopted and they have proved resilient (Fombad 2014). A state-nation manages diversity while also striving to build a sense of belonging to the larger political community (Stepan et al. 2011). How it differs from the nation-state is illustrated in Table 2.2. It recognizes both the centripetal and centrifugal nature of politics in societies that are characterized by ethnic diversity, often geographically concentrated. Countries like Canada, Belgium, and Spain in the West and India, Pakistan, the Table 2.2  Differences between nation-state and state-nation Criteria of comparison

Nation-state

State-nation

Development scenario Dominant form of politics  State policy

Organic homogenization

 Citizen orientation  Rights perspective

Acceptance of a single national identity Citizens as rights-holders

Manufactured integration of consensus Rivalry over state power among identity-based groups Creation of a sense of belonging to political community at large Presence of multiple identities

Source: Author

Competition between interest-­ based parties and organizations Assimilation of new groups

State as rights-holder

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Philippines, and Indonesia in Asia are examples of what these authors view as state-nations. They are contrasted with countries like Japan, Thailand, Germany, France, and the Scandinavian countries which have more organically over time grown into nation-states although at one time they were all like today’s state-nations. France, for example, was for many centuries inhabited by groups of people with their own language and culture but since the days of Napoleon in the early nineteenth century, France has gradually become a country speaking one language and insisting on foreigners to submit to this view of the nation as a homogenous entity (Weber 1976; Hobsbawm 1992). It is an example of how the state, much like it is striving to do in Africa today, was once used to forge unity. The difference is that today’s state-nations are judged by already successful nation-states. The global governance and development agendas set by European countries leave no empathy for countries that are different. Table 2.2 summarizes differences between nation-state and state-nation. Although there are examples of federal state-nations in Africa, notably Nigeria, Ethiopia and Sudan, federalism as a constitutional principle has not gained wide popularity on the continent. It has been associated with the emergence of irredentist sentiments, and as the Biafra War in Nigeria and the violent break-up of Sudan indicate, state-building under federalist auspices has been plagued by violence. Kenya quickly abandoned it after independence. That is also one reason why the protection of minorities, as articulated in the United Nations Convention on Cultural and Social Rights, has had limited appeal among government leaders on the continent (Gilbert 2013). It is difficult to argue that one ethnic group is more “indigenous” than another. To fully appreciate, therefore, how public policy functions in practice in African countries and how theory might best throw light on it, knowing where a country places on a specific global scale of governance or development is not enough nor are mainstream perspectives always the most enlightening. The challenge is to find where they are and examine what they tell us about how similar or different public policymaking in Africa is. It is with this respect for existing codified knowledge about public policy in theory and practice as well as our aspiration to fill a gaping hole in understanding the policy process in African countries that we now turn to Kenya.

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The Kenyan Situation Kenya shares the features of a state-nation, but its development is also the product of factors peculiar to its geography and history. The most common observation among analysts is that politics in Kenya is “tribal”, that is, characterized by ethnic rivalries. It is set in contrast to Tanzania where forging the nation may be said to have reached further as evident in the use of Kiswahili as the national language and a hegemonic political machine in the form of Chama cha Mapinduzi (CCM) as governance backbone. This comparison is not irrelevant and was the foundation for the analytical work that was initiated four decades ago by Joel Barkan and John Okumu (Barkan and Okumu 1979). By taking a fresh look at the situation in Kenya in the 2020s, it is evident that parts of the old narrative are still valid but with the adoption of the 2010 Constitution, the question arises how much this milestone event has changed what is happening. The rest of this chapter will (1) outline the evolution of governance modes in Kenya since independence, (2) introduce the main features of the 2010 Constitution, and (3) analyse the challenges of putting the new constitutional principles into practice. The Evolution of Governance Modes The governance imperatives in Africa complicate constitutionalizing viable political orders in several different ways. The first is to find the right mix of principles and mechanisms for addressing these imperatives. It requires a balance between expert opinion and political savviness that is typically not generated “overnight” (Hyden and Venter 2001). It may entail experimentation, but experience suggests that when circumstances permit, a longer time that allows for reflection and deliberation enhances the chance of a positive outcome. A second way is to ensure that people who are still acting only as “voters but not yet citizens” are educated about their rights and understand the value of a democratic constitution guaranteeing these rights (Logan and Bratton 2006). Yet another way is the impatience that tends to grow once the promise of a new constitution is launched. This is especially true when the process is participatory and thus tends to make the public aware of its potential value. That is why, as Ghai and Galli (2006) emphasize, there is need to distinguish between constitution-­ making and constitution-building. The former is preparing the actual text, while the latter refers to locking it into institutional practice. As we showed

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earlier, although there has been a certain stabilization, constitutions in Africa have been thrown out the door in large numbers. That is why observers like De Visser et  al. (2015) concluded in an overview of constitution-­building in Africa that the legal documents rarely stand the test of time. All these factors seem to have been at play in Kenya as the country has gone through several versions of how to best organize the polity. Politicians have shown at best a limited respect for the principles of constitutionalism. They have been satisfied leaving their constituents as just voters rather than enabling them to become full citizens, an undertaking that has been left to civil society organizations. Like in so many other African countries, government leaders have been reluctant to initiate a comprehensive constitutional review involving popular participation. For a long time, Kenyan lawmakers preferred to carry out amendments limited to parliamentary approval resulting in a rather incoherent patchwork of legal principles. It is not clear what would have happened to the constitutional reform process that was started in the early 2000s had it not been for the disastrous post-election violence in 2007–2008. This event was dramatic enough to generate a national consensus about the need for coming together under a new constitution. The constitution-making process was restarted in 2009. Taking advantage of the momentum that had already been generated by the work of the Constitution of Kenya Review Commission (CKRC), a committee of experts solicited further input from stakeholders and the general public before the new proposal was approved by Parliament in April 2010 after it had voted down 150 amendments. It was subsequently put to a popular referendum in August the same year in which 67 per cent, or two-thirds of Kenyans, supported it. The notion that African constitutions do not stand the test of time is at least in part a result of African countries trying to find their own way forward on terms that they can relate to. This ambition is fully understandable in places that have been subject to colonial occupation and rule. As we now know, however, breaking out of the colonial mould was not successful in many countries and authoritarianism became for a long time the order of the day until the global Third Wave of Democratization hit the African region in the early 1990s. Since then, it has been difficult to hold back demand for forms of democratic governance. The evolution of modes of governance in Kenya since independence is summarized in Fig. 2.1. The Kenyan story is quite straightforward: it has moved from federalism via a lengthy and contested period of one-party rule to a new

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Center

1964 and subsequent Amendments until 2000

1963 Majimbo Constitution

Unity

2010 Constitution

Plurality

non-starter (Risk of secession) Periphery

Fig. 2.1  The evolution of modes of governance in Kenya, 1963–2020. (Source: Author)

democratic dispensation centred on the devolution of functions and related powers to the country’s 47 counties, as confirmed in the 2010 Constitution. This reflects the search for a workable political balance between national and local interests, or unity and plurality, on the one hand, and, on the other, an acceptable policy balance when it comes to functions and resource allocation between central and county governments—or centre and periphery. Although one can argue that Kenya in its search for a viable constitutional arrangement has been “all over the place”, it has avoided the quadrant that combines federalism with devolution, that is, plurality with the periphery. This has been a virtual taboo arrangement in Africa although the 1995 democratic federal constitution in Ethiopia with its provision for states to possibly secede comes closest to fitting there. The constitutional journey may have been crooked, but compared to most other African countries, it has been largely peaceful. Amendments have been made to adjust to changing circumstances. Kenya’s first independence constitution was the outcome of three conferences at Lancaster House in London and was federal. The political authority would be delegated to the country’s seven provinces (majimbo) to accommodate demands from European settlers in the Rift Valley as well as smaller ethnic groups on the Swahili coast and in the northern and less populated parts

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of the country. The occasion to amend this arrangement came after only a year when the Parliament voted to make the country a republic and abandon the British monarch as head of state. The same amendment also removed the provincial powers in the constitution. The ruling Kenya National Union party—KANU—deemed the Majimbo arrangement to be a potential threat to unity and although there have been occasional demands for greater autonomy, especially on the Coast, the wish to go back to it has been limited. The constitution was subsequently amended a few more times. The 1982 Amendment made Kenya a one-party state. Nine years later it was amended once again—this time to allow for the return of multiparty politics. These amendments significantly changed governance but there was still enough widespread public dissatisfaction that Parliament after the 1997 elections passed an act in 2002 for a comprehensive review of the constitution. This move laid the foundation for the appointment of the aforementioned CKRC, chaired by Professor Yash Ghai. It came up with recommendations based on broad public consultation and involvement by key stakeholders. The review process itself was contested and the National Conference that was organized to discuss its recommendations aborted. The final blow came when Kenyans rejected the proposals in a 2005 referendum. As suggested earlier, the post-­election violence in 2007–2008 changed things and the review process was restarted paving the way for the 2010 Constitution. It is the most recent landmark, the first product of a comprehensive review process. More than any previous step in the process since independence, it represents a fresh start meant to ignite commitment to constitutionalism. This is an exercise that is as hard as it is crucial at a time when Kenya has reached middle-income status and must display a good governance record to take advantage of the international loan potential and other benefits that accompany this rank. More than ever before, respect for the rule of law matters for Kenya’s future development. The next section introduces the most important features of the new constitution and is followed by a discussion of the challenges associated with putting the text into practice. The 2010 Constitution The new constitution brings potentially significant changes to governance in Kenya. It has met with wide support not only in Kenya but also in the international donor and business community, a nod that is especially

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significant as Kenya grows increasingly integrated into global relations. It is impossible to detail all the changes that have been brought. Instead, this segment will offer a brief analysis of its principal features and gains that are important in a democratic governance perspective. There are two cross-­ cutting principles that run through the constitution. They apply to how government is organized as well as the rights that citizens have. The first of these principles is accountability, the second is justice. The discussion is graphically summarized in Fig. 2.2. One of the most controversial features of Africa’s state-nations is the weakness of their public realm. As Ekeh (1975) noted, there are two legitimate realms in Africa. One is the civic public realm that was introduced by the colonial powers, and the other is the primordial communal realm. He argued, based largely on the West African experience, that people are more loyal to the latter than the former. Becoming a leader in Africa requires support from one’s own communal group but this support comes with a cost. Supporters expect to be paid back. In principle, it is the same dynamic that works in every democracy, yet it is different in Africa because it has two detrimental effects that the Constitution addresses: (1) the independence of public institutions and (2) threats to public finance management. State

Judicial independence, Independent Land Commission

Independent Ethics Commission, Equitable sharing between central and county governments

Accountability Right to recall elected leaders, Freedom of media

Justice Bill of Rights, Gender equity in representation

Society

Fig. 2.2  Examples of fresh accountability and fairness clauses in the constitution. (Source: Author)

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The ambition to guarantee the rule of law by granting independence to the judiciary is perhaps the most significant step. It is not a real break with the past because unlike most other African countries Kenya has had a reasonably independent judiciary ever since independence. Still, the Constitution confirms this in a manner that is reassuring to Kenyans. It is reinforced by other measures notably the creation of an Ethics and Anti-­ Corruption Commission with responsibility to monitor the behaviour of public servants although its status, at present, is not secured in the Constitution. This ambition extends even further through the appointment of an independent Land Commission to oversee public lands and ensure that it is not parcelled into plots that are bought by private persons as has happened in the past. The other concern is addressed by the Constitution guaranteeing an equal distribution of public funds between central and county governments. In societies that are structured as consumption rather than production communities, the danger is imminent that resource allocation is politicized in a manner that is detrimental to their public finances. The Constitution tries to regulate this by (a) setting up a special Equalization Fund and (b) laying the foundation for a formula that is based on rewarding initiative while also taking into consideration the population size and geographical location of the county. Another weakness in African governance that has already been alluded to is the lack of civic consciousness among the public. To help mobilize more participation and civic awareness, the Constitution addresses the issue of justice, both procedural and substantive. The inclusion of a Bill of Rights that gives citizens the right to sue the government or any part of it is the most important. Especially significant in the African context is that the Constitution goes beyond the notion of communal rights that forms the basis of the African Charter on Human and Peoples’ Rights and tends to be preferred by most African governments. On the substantive side, Kenyans are now guaranteed a minimum of 30 per cent of gender in elected government bodies as well as a promise for all citizens, especially the elderly, that they will be assisted when needed. It is also clear that many of the clauses in the Constitution are addressing concerns that affect the country’s growing youth population with its more cosmopolitan outlook on life.

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From Text to Practice One thing is clear: the 2010 Constitution has raised the bar for what is acceptable behaviour in the civic public realm. It now remains for political leaders, other stakeholders, and the public to put it into practice. It will not be an easy task but as the Presidential Task Force Report of the Building Bridges Initiative (BBI; 2019) stresses, the time for action is now. The BBI is a confirmation that constitution-making is not only about solving legal and technical issues—its internal dimension—but also addressing its external political dimension, that is, how it is received among the public, especially influential stakeholders. Engaging people and their representatives in the process, as the Kenyans have done, is one way of doing so, but it comes with a rise in popular expectations that may be difficult to satisfy. The handshake between President Uhuru Kenyatta and the main opposition leader, Raila Odinga, that set the BBI in motion signified an admission that political leaders had fallen short of living up to the promise of the new constitution. There may have been other motives behind the event, but it seems to have forced politicians up against the wall. The Task Force Report is an honest self-assessment of what has not yet been done—an exercise that is rare not only in Africa but elsewhere as well. It stresses that constitution-building is an ongoing process. Constitutional principles are supposed to possess longevity but their interpretation changes with time. Only a decade has passed since the constitution was adopted and only seven years, since it became open for implementation. Under these circumstances, there are bound to be disputes over how to interpret its text. Still, the Report may be read as an initial monitoring of the process of implementing the constitution. It addresses several weaknesses in the Kenyan system of governance, foremost of which are (1) the continuation of ethnic politics, (2) the ongoing prevalence of corruption, (3) the incomplete devolution of powers to the counties, and (4) the lack of a national ethos. The Report laments the ethnic divisions that continue to characterize Kenyan politics especially at the time of elections. It suggests that little headway has been made on this score despite the promise of the 2010 Constitution. It is critical of the current “first-past-the-post” electoral system whereby the winner takes all and would like a system that is more inclusive and less prone to fuelling conflict. This is an important call for a country that wishes to move forward in peace but the fact that this is an issue confirms how difficult it is to change behaviour in societies where the

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minds of people are shaped by their allegiance to communities in which consumption and social reproduction are still highly valued. This orientation, however, may be changing especially in urban areas and the focus on the youth confirms the pioneering role that they have in bringing about a new order. Another unmet challenge is how to reduce corruption in public office. Again, the Constitution is clear on the vital need to combat corruption, but the Task Force recognizes that there is still a long way to go. The important point here is that eradicating corruption in Africa is not just a matter of right policy or right institutional mechanisms to contain it. These are important but typically not enough because corruption in these societies is more than a form of deviant behaviour. It is rooted in social structures that take long time to change. People continue to look to the communal realm for solutions as the frequent use of the phrase “it is our turn to eat”—or to “chop”, as the West Africans would have it (Lindberg 2003). This orientation may be at least in part fostered by the “first-past-­ the-post” electoral system and politicians typically do little to question it, but it is also more deeply rooted and ingrained in the minds of people, especially in the rural areas where the sources of livelihood are many and local political patrons have a role in getting their constituents private or “club” goods to which they would not otherwise have access. It is not surprising therefore that corruption continues to be a plague in the public realm. A third concern in the BBI Task Force Report is the incomplete devolution process. The politics of devolution has intensified as county governors have become more confident in their role and gained a degree of legitimacy that was never possible for the District Commissioners of the old system to achieve. The Task Force thinks that more functions should be delegated to the countries and to ensure that people can benefit from decentralization adopt a funding formula whereby 70 per cent of the national budget goes to the counties. There is also a suggestion that some of that money goes further down the hierarchical ladder to the ward level at which people have greater direct influence. At the same time, the Task Force confirms an observation made independently by two researchers that the patronage nature of resource distribution is the practice at county level (D’Arcy and Cornell 2016). The “Big Man” mentality influences politics also at that level. Finally, on financing development, it emphasizes the importance of counties becoming more entrepreneurial. They do already raise their own revenue, but the Task Force means that they could

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do more by earning income from business partnerships or encouraging local commerce that yields income in the form of fees. Yet another recommendation is that counties create economic “blocs” to minimize costs for equipment and services that are cheaper to provide on a larger scale than the individual county. The fourth concern that we discuss here is the reference in the Report to the lack of a national ethos. Building such an ethos has three dimensions. The first is political and involves creating a political system that is not corrupt and characterized by conflict over resources based on the notion of winner takes all, as mentioned earlier. The second is economic and should be focused on reducing the gap between rich and poor, whether this refers to individuals or communities. The government needs to do more to achieve greater equality which includes adjusting the devolution scheme to become more effective as an equalizing mechanism. The cultural dimension involves strengthening the civic component in the country’s education system. An especially intriguing proposal is the composition of an official Kenyan history that goes beyond the oral history that tends to be the identity of each ethnic group. Meant to be left to the country’s best historians to prepare, it is still likely to be a contested exercise, especially if it is going to be scrutinized by the Parliament or a Government Ministry before being issued. This is an imminent risk in a polity where the civic public realm is still weak and easily punctured by parochial or provincial claims. The other important suggestion is that the task of building a national ethos must start at the grassroots, notably in the family. Kenya’s youths are already ahead of their parents when it comes to embracing a national and cosmopolitan outlook, but the latter cannot escape the responsibility to create an atmosphere in which national values rest on an ethical basis.

Conclusion This chapter has identified the nature of Africa’s governance imperatives and discussed how Kenya, through its constitution, has responded and designed institutional measures to keep national unity while at the same time fostering development policies that benefit the country’s rapidly growing population and sustain its status as a middle-income country. The BBI Task Force Report indicates that this response is still a race to catch up with popular expectations. The adoption of the 2010 Constitution has further reinforced these expectations, making public policymaking

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potentially even more challenging. This is the case at the same time as the new constitutional order places Kenya ahead of most other African countries in moving towards more democratic forms of governance. Kenya also has another advantage over most other countries in the region: a strong and self-confident middle class, a factor that according to Cheeseman (2014) has the potential of making a positive difference for both governance and development, a point that has also been made with reference to India (Varshney 2003). Civic associations are a necessary mechanism for transforming Kenya from a society of blood ties to one of the civic ideals. Kenya has many of these associations in place. The challenge to create the space for their potential is to be realized. Thus, the constitution-building exercise is far from over. In many respects, it has just started. Subsequent chapters will highlight and discuss in greater detail some of the more significant issues in making public policy in contemporary Kenya.

References Amin, Samir. 1976. Unequal Development: An Essay on the Social Formations of Peripheral Capitalism. New York: Monthly Review Press. Barkan, Joel, and John J. Okumu, eds. 1979. Politics and Public Policy in Kenya and Tanzania. New York: Praeger. Booth, David. 2015. Still Watering White Elephants? The Blueprint versus Process Approach Thirty Years On. In Perspectives on Politics, Production and Public Administration, ed. Mette Kjaer, Lars Engberg-Pedersen, and Lars Buur, 11–25. Copenhagen: Danish Institute of Development Studies. Bratton, Michael, and Richard Houessou. 2014. Demand for democracy is rising in Africa, but most political leaders fail to deliver. Afrobarometer Policy Paper No. 11. Johannesburg: IDASA. Chayanov, Alexander [1925] 1966. The Theory of Peasant Economy. Homewood IL: Richard D. Irwin, Inc. Cheeseman, Nicholas. 2014. Does the African Middle Class Defend Democracy? Evidence from Kenya. Afrobarometer Working Paper No 150. Johannesburg: IDASA. Cornell, Agnes, and Michelle D’Arcy. 2016. Devolution, Democracy and Development in Kenya. ILCD Research Report No 5. Visby, Sweden: International Centre for Local Democracy. De Visser, Jaap, Nico Steytler, Derek Powell, and Ebenezer Durojaye. 2015. Constitution-Building in Africa. Baden-Baden, Germany: Nomos. Ekeh, Peter. 1975. Colonialism and the Two Publics in Africa: A Theoretical Statement. Comparative Studies in Society and History 17 (1): 91–112.

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Fombad, Charles M. 2014. Constitution-Building in Africa: The Never-Ending Story of Making, Unmaking and Remaking Constitutions. African and Asian Studies 13 (4): 429–451. Ghai, Yash, and Guido Galli. 2006. Constitution-Building Processes and Democratization. International IDEA Research Paper. Stockholm: International Institute of Democracy and Electoral Assistance. Gilbert, Jeremie. 2013. Constitutionalism, Ethnicity and Minority Rights in Africa: A Legal Appraisal from the Great Lakes Region. International Journal of Constitutional Law 11 (2): 414–431. Hobsbawm, Eric. 1992. Nations and Nationalism: Programme, Myth, Reality. Cambridge, UK: Cambridge University Press. Hyden, Goran. 1980. Beyond Ujamaa in Tanzania: Underdevelopment and an Uncaptured Peasantry. Berkeley, CA: University of California Press. Hyden, Goran, and Denis Venter, eds. 2001. Constitution-Making and Democratisation in Africa. Pretoria: Africa Institute of South Africa. Imanishi, Kinji, and Pamela J.  Asquith. 2002. A Japanese View of Nature: The World of Living Things. London: Routledge. Itani, Jun’ichiro. 1988. The Origin of Human Equality. In Social Fabrics of the Mind, ed. Michael R.A.  Chance, 137–156. Hove: Lawrence Erlbaum Associates. Kakeya, Makoto 1976. “Subsistence Ethic mong the Tongwe, Tanzania”, Kyoto University African Studies, 10: 143–212. Levy, Brian. 2013. Working with the Grain: Integrating Governance and Growth in Development Strategies. New York: Oxford University Press. Leys, Colin. 1975. Underdevelopment in Kenya: The Political Economy of Neo-­ Colonialism. London: Heinemann. Lindberg, Staffan. 2003. It Is Our Time to ‘Chop’: Do Elections in Africa Feed Neo-Patrimonialism Rather Than Counteract It? Democratization 10 (2): 121–140. Linz, Juan, and Alfred Stepan. 1996. Problems of Democratic Transition and Consolidation. Baltimore, MD: Johns Hopkins University Press. Logan, Carolyn, and Michael Bratton. 2006. Voters But Not Yet Citizens: The Weakness of Vertical Accountability in Africa’s Unclaimed Democracies. Afrobarometer Working Paper No 63. Johannesburg: IDASA. Mamdani, Mahmood. 1996. Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism. Princeton, NJ: Princeton University Press. Montgomery, John. 1987. Probing Managerial Behavior: Image and Reality in Southern Africa. World Development 15 (7): 911–929. Okoth Ogendo, Hastings G.W. 1988. Constitutions Without Constitutionalism: An African Paradox. New York: Council of American Learned Societies. Ossome, Lyn. 2018. Gender, Ethnicity and Violence in Kenya’s Transitions to Democracy. Minneapolis, MN: Lexington Books.

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Presidential Task Force on Building Bridges Initiative. 2019. From Blood Ties to Ideals: Report of the BBI Task Force. Nairobi: President’s Office. Rodney, Walter. 1972. How Europe Underdeveloped Africa. London: Bogle-­ L’Ouverture Publications. Stepan, Alfred, Juan J. Linz, and Yoghendra Yadav. 2011. Crafting State-Nations: India and Other Multinational Democracies. Baltimore, MD: Johns Hopkins University Press. Sugimura, Kazuhiko. 2004. The Livelihood of African Peasants: An Inter-regional Comparison on Organizational Principles. Kyoto: Sekaishisosya. Therkildsen, Ole. 1988. Watering White Elephants: Lessons from Donor Funded Planning and Implementation of Rural Water Supplies in Tanzania. Uppsala: Scandinavian Institute of African Studies. Varshney, Ashutosh. 2003. Ethnic Conflict and Civic Life: Hindus and Muslims in India. New Haven, CT: Yale University Press. Weber, Eugen. 1976. Peasants into Frenchmen: The Modernization of Rural France, 1870–1914. Stanford: Stanford University Press.

CHAPTER 3

The Global Nature of Policy Problems Jacqueline M. Klopp and Abdullahi Boru Halakhe

Introduction Kenya emerged out of resistance to the geopolitical processes of colonialism and, in a globalized world, the country remains heavily imbricated in complex trans-national forces with wide-ranging implications. This chapter looks at how Kenyan public policy is confronted by and addresses current global challenges and forces. Kenya faces diverse trans-boundary policy issues, including climate change, deforestation and biodiversity loss, counter-terrorism, corruption, migration and refugee flows, foreign investment, remittances, aid, disruptive and rapid technological transformation along with expanding power of global technology companies, misinformation, and surveillance. All these processes also interact with each other adding to policy complexity and raising profound multidimensional

J. M. Klopp (*) The Earth Institute, Columbia University, New York City, NY, USA e-mail: [email protected] A. B. Halakhe Independent Consultant on Governance, Peace, and Security, Washington, DC, USA © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 G. Onyango, G. Hyden (eds.), Governing Kenya, https://doi.org/10.1007/978-3-030-61784-4_3

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challenges requiring critically important public policy responses and discussions. This chapter begins with an overview of the “glocal” (blended global and local) nature of many of the policy problems facing Kenya. This includes a brief discussion of global actors active in Kenya’s policymaking and the problems their influence raises around questions of dependency and accountability. Policy dynamics are often best understood within the context of case studies. Thus, this chapter provides two different examples of policies—Climate Change Mitigation and Adaptation and Counterterrorism/Countering Violent Extremism. These case studies highlight (1) the diverse nature of “glocal” challenges, (2) the different ways global issues, dynamics, and actors come into play within specific public policy issues, and (3) how current policies form and their effects. It ends with a section on what these case studies teach us for policymaking at large.

Globalization and Public Policy: A Brief Overview Kenya’s birth, like that of most countries, was embedded and shaped by geopolitical dynamics. In 1963, Kenya emerged as a “nation-state” out of resistance to the global expansion of British imperial colonial power. Given Kenya’s relatively recent colonial history, an enduring question around Kenyan public policy is how much is truly autonomous from external forces? Related questions are how downwardly accountable is any public policy process and outcome? Further, since policy requires data, analysis, and policy narrative, who is providing such input, and how reliable is it? In the context of post-colonialism, it is also critical to ask how much Kenyan policymaking relies on local knowledge, data, and expertise versus an externally driven policy advisory system.1 In Kenya, questions of dependency, constraint, and interference are important to take into account in policy formation. Dependency involves a geopolitical dynamic where foreign actors, such as other governments or private actors like multinational corporations or global technology companies, leverage power asymmetries for their own goals. These goals can often clash with the public interest, aspirations, and 1  Policy advisory systems are defined as the system of governmental and non-governmental actors who compete or cooperate to provide the advice for decision-makers who shape policies.

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needs of local people. Dependency can take the form of interference through technical advising, tied aid or lobbying, both formal and informal (Glennie 2008; Moyo 2009). This is a deep concern even in larger, more powerful countries like the United States (Cooley and Heathershaw 2017; Thurber et al. 2018). The extent and shape of dependency on public policy are also linked to domestic political dynamics. This is because foreign actors often collaborate with local actors who stand to benefit from an alignment with external actors. Indeed, powerful local actors find ways to leverage their power to take advantage of global actors who need Kenyan government cooperation on critical issues that spill over into their own countries or influence their private business interests. Such issues include terrorism, trade, or public health crises from antibacterial resistance that emerges when poor people do not have access to proper health care to pandemics which, in a highly interconnected world, tend to spread to almost every place as seen in the case of  COVID-19. Furthermore, foreign countries such as the United States or China lobby on behalf of their nationals to promote business and trade interests and often compete in the process, opening up space for local policy actors to extract more benefits, both private and public. In Kenya, for example, the rising influence of China has increased competition among foreign actors and thus shifted some of the geopolitical dynamics, influencing Kenyan policymaking (Alden 2007; French 2014). As discussed in detail by Fred Jonyo in Chap. 11, foreign aid is one way that other countries exercise “soft power” or create policy leverage. To the extent that a nation’s budget for vital services such as education, health, or security depends on external actors, domestic public policy in these areas is not fully downwardly accountable. Even if this aid is in the form of budget support and without conditionalities, problems of downward accountability and moral hazard arise where the decision-makers make choices that implicate the public but do not suffer personally if these decisions are poorly made.2 This is because aid is often negotiated opaquely by bureaucrats at the Treasury and high-level politicians, far from people and their democratic forums in both receiving and lending countries. Further, to the extent that donors give aid with a specific purpose in mind, policy 2  In some African countries the vast amount of public expenditures comes from aid. Kenya is not considered an aid dependent country with approximately 7–10% of its public expenditures coming from aid. However, aid is not the only kind of dependency as we have noted.

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agenda-setting is not being done locally. Even when they do not have such a specific purpose in mind, astute local political actors are often able to appropriate and shape aid to fit their own purposes, sometimes skilfully playing donors off each other and in some cases, diverting funds. Hence, for these reasons, some economists argue against aid altogether (e.g. Moyo 2009).

Historical Legacy and Dependency It is important to note that dependency dynamics are in no way unique to Kenya but are shaped by local history. Early debates on Kenya’s dependency mostly involved a focus on global capitalist interests supported previously by colonialism, for example, the large multinationals that got access to Kenyan land for plantation agriculture (Leys 1975). Early in the post-colonial period, several scholars argued that Kenya’s new state was dependent, linked to these global capitalist interests, and therefore unlikely to produce development for the majority (Leys 1975; Bradshaw 1988). Early dependency theory debates grew muted because of many factors. These included the repression of Kenyan dissidents such as Oginga Odinga and J.M. Kariuki who demanded more equity in addressing colonial legacies; the emergence of post-colonial economic growth; and the ascendancy of “Washington Consensus” policies of privatization, liberalization, and macro-stability in the 1980s that overall focused on the positive force of private companies and “markets” versus state control (Williamson 2008). This “consensus” of powerful actors at institutions like the World Bank and IMF in Washington was largely critiqued for being imposed from the outside with a particular ideological lens and in ways that caused serious damage to public programmes (Mkandawire and Soludo 1999). This is one well-known case where an externally dominated policy advisory system did not take local needs and concerns into account. The implementation of this external vision led to a backlash in African policy and academic circles, as discussed by Anyang’ Nyong’o in Chap. 16 of this volume. One thing that many scholars of African politics never accepted was the clear distinction implied in the “Washington Consensus” between state and business. They noted that state actors “straddle” or use their positions in the government to irregularly amass private wealth, including appropriating aid, using their power to acquire corporate shares and interests, or capturing policy as a lever to support their own business and political

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interests. These forms of corruption—broadly defined as the use of public office for private gain—are global and affect all countries, but the specific form is shaped by a country’s own history. This needs to be taken into account when thinking about how public policy can escape elite capture or diversion of resources to ensure policy implementation in the public interest. One clear example is in Kenyan land policy where critical redistributive and regulatory reforms often seem to be captured, derailed, or vetoed by powerful national and local actors (Klopp and Lumumba 2017; Boone et al. 2019; Gargule and Lengoiboni 2020).

Globalization and Interdependence in Public Policy Increasingly our world is knit more closely together by ever-improving Internet and Communication Technologies (ICT), complex supply chains, immigration, financial transactions, and trade, a complex set of processes called “globalization” which is hardly new but part of a longer-term historical process (Osterhammel and Petersson 2009). Many critical problems emerging out of global economic dynamics, such as our ecological and climate crisis, are complex because they are trans-boundary, involve many actors and require high levels of global cooperation and transformation to address. Since the colonial period, the number of foreign, regional, and multilateral actors in Kenya engaged in policy has grown and the actors have become more varied. Nairobi is home to the United Nations Environmental Programme (UNEP) and the United Nations Human Settlements Programme (UN-Habitat) and in 1996 became the UN headquarters in Africa. Kenya’s historical ties to Britain and the United States have also become increasingly diversified with growing financial and trading ties to the European Union as a whole, a major market for Kenyan goods and source of tourism dollars. Asian countries such as Japan and China are also involved in Kenyan policy with Nairobi hosting the largest Chinese embassy in Africa. Kenya is also active in the African Union based in neighbouring Ethiopia and a key, powerful member of the East African Community with an East African Court of Justice located in Arusha, Tanzania. Hence, Kenya’s policy choices are both embedded in international and regional dynamics and have spillover impacts in the region and the world. In short, Kenya is the site of important global and regional policy formation and dialogue. Two different cases—climate change and counter-terrorism—provide further detail.

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National Climate Change Policy and Action Plan Climate change is one of the biggest and most complex threats facing the planet. Since the beginning of the industrial age, use of fossil fuels as the basis of economic activity has led to substantial increases in greenhouse gases (GHG) that, in turn, are causing the mean average temperature of the Earth to rise (“global warming”). This is causing profoundly negative impacts on human well-being and health (IPCC 2014) and is a challenging political problem requiring multiple actions and high-level global cooperation. In Sub-Saharan Africa, including Kenya, climate change is already impacting patterns of flooding and drought, total surface freshwater availability, water requirements for cropland irrigation, ecosystem productivity, and crop yields (Republic of Kenya 2010; Müller et al. 2014). Addressing climate change requires unprecedented global cooperation. No single country can change the course of our planet’s climate health. At the same time, the issue of climate change and the need for an energy transition and other interventions confront many entrenched interests from within the current fossil fuel-based economy. This includes fossil fuel companies themselves which have an interest in delaying action and hence have invested heavily in misinformation and lobbying efforts (Oreskes and Conway 2010). Besides, several African governments such as Nigeria, Angola, South Sudan, and Equatorial Guinea rely heavily on oil revenues, although this has not necessarily led to improved livelihoods for citizens in these countries and some cases may be a “curse” (Watts 2004; Obi 2010; Klopp and Halakhe 2019). Powerful interests in the private sector and government that support fossil fuel extraction bump up against the “inconvenient truth” of scientific analysis which demands that we keep fossil fuels in the ground to avoid large-scale damage. Because of the unprecedented scale of the climate crisis, environmental groups, scientists and concerned governments pushed for an international mechanism to work on addressing it. Out of this global diplomacy and advocacy, the UN Framework Convention on Climate Change (UNFCCC) was born in 1992 and came into force two years later after enough countries ratified it. UNFCCC is an international treaty that creates a framework for countries to work together to “stabilize greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system” (UNFCCC 2012). The Convention created a framework with guidelines for countries to negotiate more specific international treaties. Via the 1997 Kyoto Protocol

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and the 2012 Doha Amendment, party countries adopted the Paris Agreement in 2015. It governs emission reductions from 2020 onwards. Countries are expected to make voluntary commitments through Nationally Determined Contributions (NDCs) to keep the rise in average mean global temperature to 1.5 °C. Kenya makes a small but growing contribution to global GHG emissions. In 2013 its total GHG emissions were 0.13% of global GHG emissions (USAID 2017). Despite this small contribution, Kenya is set to suffer serious climate change impacts on its cities, agriculture, fisheries, and water resources (Republic of Kenya 2010). Indeed, with locust swarms, melting of Mt Kenya’s ice cap, flash floods, and more severe droughts, Kenya is already suffering the consequences of a changing climate system, with its rain-fed agricultural system being particularly vulnerable (Republic of Kenya 2010). To avoid a worsening of these conditions as well as to access climate finance and support for important climate adaptation initiatives, Kenya has a strong interest in promoting global diplomacy to reduce carbon emissions, and it became a party to the UNFCCC and its agreements in 1994.  he Policy Process T As a party to the UNFCCC, the Kenyan government is required to produce climate action plans and establish national GHG inventories to assess progress on reductions goals as stated in its Nationally Determined Commitments (NDCs). This responsibility negotiated by Kenya’s diplomats then fell to the Ministry of Environment.3 By engaging in global climate diplomacy, which was clearly in Kenya’s national interest, new responsibilities emerged at a national level to produce policy in line with global treaty commitments. Specifically, the Ministry of Environment was made responsible for creating a Climate Change Action Plan (CCAP) and localizing UNFCCC treaty obligations into national law, making the country eligible for needed climate funds. This new requirement also became a hook for civil society groups to become involved and push for policy progress. 3  The Ministry of Environment changed names a few times over the course of time from the Ministry of Environment and Mineral Resources to the Ministry of Environment and Natural Resources, a move that took away responsibility over Mining and Irrigations as the two functions are now under separate Ministries. For simplicity we will just use the term “Ministry of the Environment”.

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Kenya’s civil society organizations formed the Kenya Climate Change Working Group (KCCWG) in 2009 with the objectives of pushing for climate policy, legislation, and action.4 The UNFCCC recognizes the role of civil society groups and allows them observer status at the COP meetings, providing a high-profile and networking space. With the advent of Kenya’s 2010 Constitution, a stronger legal basis also came into existence for public participation in environmental policymaking. The constitution states that citizens have the right to a “clean and healthy environment” and to “have the environment protected for the benefit of present and future generations through legislative and other measures”, and Article 69 (1) (d) explicitly states that “the State should encourage public participation in the management, protection, and conservation of the environment”. The first phase of public policymaking around climate change was driven by civil society action. In light of government inaction, civil society in alliance with some parliamentarians, global civil society, and some donors formed the KCCWG which took upon itself the task of creating a Zero Draft of a Climate Bill and ensuing policy. The group then engaged parliament and other key policy actors to get input into revisions as well as “buy-in”. The KCCWG had a policy champion, Dr Ottichilo, who introduced the Bill as a private member’s bill and worked to usher it through the parliamentary process (Njoroge et al. 2017). As a scientist with extensive knowledge of ecosystems and natural resource management, Dr Ottichilo both understood what was at stake and could speak as both parliamentarian and expert. Nevertheless, it still took two years of negotiations in parliament to get the bill passed, and it was ultimately vetoed in 2012 by the President claiming inadequate consultation took place. The divergence between the executive and the KCCWG lay in which kind of institution (council vs authority) would oversee climate change policy and dictate levels of policy priority, funding, and control (Njoroge et al. 2017). An authority would have more power to push compliance among different ministries and be a more powerful institutional mechanism for promoting change. After the failure to pass the bill, KCCWG did not give up. Press attention and public discussion around the bill and the need for climate change action also helped create continuing pressure to proceed with negotiations 4  We recommend those interested in the details of this process read Njoroge et al. (2017). We are indebted to this valuable case study for our chapter.

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around the bill. Green energy businesses, which are quite substantial in Kenya with its large renewable energy potential, were also eager to tap into global climate finance that a Kenyan government climate act and action plan would unlock (Naess et al. 2015). Thus, a growing alliance for the climate change bill and policy coalesced through the hard work of a network of policy actors centred in the KCCWG. In response to this momentum, the Ministry set up a National Task Force to develop a Climate Change Policy and Law and re-tabled the bill in parliament. This put the executive back in the driver’s seat in the policy process. KCCWG, which had been leading policy coordination, had to compromise and shift its role in the process to become a strong supporter (Njoroge et al. 2017). The Task Force was mandated to reach out to all levels of government including the counties and spread awareness among the public in line with the constitution. These developments were a significant break from the past. Up until 2013, the Ministry, despite international commitments, did not engage significantly in efforts to address the threats of climate change through policy. In 2013, the President appointed Professor Judi Wakhungu as Minister of Environment and Mineral Resources. She had worked in the Kenya Wildlife Services, was conversant with ecological issues, and took the climate change challenge seriously becoming another policy champion. In 2014, with committed leadership in the Ministry, the Task Force organized a successful forum that brought together a wide range of actors including different parts of the government and civil society along with global non-governmental organizations (NGOs) and supportive foreign partners to give input into the law and policy and set the tone for continuing cooperation and compromise. In May 2016, after this extensive negotiation process, parliament passed the Climate Bill to become the Climate Change Act, making Kenya one of the first countries in the South to have such a framework for action. The Act creates a National Climate Change Council and requires both national climate change action plans and biannual reporting on the progress on international commitments to parliament. It serves to guide mitigation and adaptation efforts and help achieve low carbon climate-resilient development. The Act also set in motion the second phase of policymaking which involved putting together the now required National Climate Change Action Plan (NCCAP) 2018–2022, a five-year, strong plan to mainstream climate change action across different sectors. It took a year of

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consultation that many of those involved described as “efficient, ‘smooth’ and ‘rapid’, but wide-ranging and able to reach consensus across the board” (Naess et al. 2015, p. 537).  olicy Outcomes and Enduring Issues P Kenya is now considered a leader on climate change policy and action on the continent. It has a growing, vibrant renewable energy sector with ample, untapped potential in wind, solar, biogas, and hydropower yet to be fully harnessed to reach its climate and development goals (USAID 2017). The climate change policy framework gives Kenya access to climate finance to accelerate action. While this creates a strong and potentially growing policy constituency for continued progress, this does not mean policy implementation is easy especially since climate action has not yet been mainstreamed across different sectors. One major challenge is that Kenya has discovered oil. Powerful players have interests in developing it along with providing pipelines for moving oil out of South Sudan through the Lamu Port-South Sudan-Ethiopia Transport (LAPSSET) project. Carbon fuel-related infrastructure megaprojects such as pipelines and highways offer ample opportunities for corruption (Klopp 2012). One example is the push for an economically unsound coal power plant in Lamu which is seen as part of a set of LAPSSET projects. In a corrupt deal, a 25-year power purchase agreement between the government and the private company Amu Power would force Kenya to pay at least $360 million in annual capacity charges, even if no power is generated while adding carbon into the atmosphere and violating Kenya’s climate action commitments (Schlissel 2019). Proponents of this project left critical information on mitigating environmental impact out of the project and failed to adequately address the climate law and action plan. This gave a coalition of civil society organizations the opening to challenge this project in court which included testimony from local and global experts. Kenya’s National Environmental Tribunal revoked the plant’s licence, handing environmental and justice activists an important victory in addressing climate change and corruption, although the company has appealed the decision and the struggle continues (Plummer 2019). As this case shows, giving policy life on the ground requires continual monitoring, strong data, action to prevent backtracking, lobbying for positive investments, and incentives for an energy transition in Kenya that promotes inclusion and social goals.

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Finally, one important point is that by being part of the UNFCCC, the Kenyan government is also required to set up a national greenhouse gas inventory and track emissions and monitor and report these relative to NDC targets for carbon emissions. The climate policy framework in Kenya also requires periodic reporting to parliament on progress. These are important transparency mechanisms embedded in the policy. They make data and evidence more central to policymaking. Furthermore, they allow greater accountability around progress and provide the evidence for carbon reduction required for climate financing of mitigation projects. This, however, requires budget allocation and capacity development support from local and foreign scientists. From Counterterrorism to Counter Violence Extremism Policy The threat of terrorism in Kenya is another example of a problem that is highly regional and globalized but with important local dynamics. On New Year’s Eve, 1980, Kenya experienced the first major terrorist attack on its soil as retribution for Kenya’s assistance to the Israeli Defense Forces (IDF) in Operation Entebbe. In this instance, the Popular Front of the Liberation of Palestine (PFLO) bombed the Norfolk Hotel which meant that most victims were foreign nationals (Mugo 2013). On 7 August 1998, al-Qaeda in East Africa attacked the US Embassy in Nairobi, killing 213 and injuring more than 4000 people (International Crisis Group 2012). Four years later, on 28 December 2002, al-Qaeda in East Africa attacked the Paradise Hotel in Mombasa killing 15 and injuring 80 (ibid.). Up until this point, Kenya and Kenyans were not the primary targets of the terrorist attacks but more recently, especially after the use of Kenyan Defense Forces in Somalia in 2011, terrorist attacks by the al-Qaeda offshoot, al  Al  Shabaab, became more frequent and focused on Kenyan nationals. Particularly shocking were the horrific attacks on Westgate Mall in September 2013 and Garissa University in April 2015. As a result of these attacks, life in Kenya became increasingly securitized with numerous checkpoints and security checks throughout Nairobi as well as an increase in anti-Somali and anti-Muslim actions and discrimination. Global Context Kenya’s counterterrorism policy and approach are intimately connected to global politics and are marked by a close bilateral security relationship between Kenya and the United States. After the 11 September terrorist

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attacks in 2001, the American government adopted a “you are with us or against us” posture and with the help of allies, pushed for the adoption of global legal, policy and administrative counterterrorism frameworks bilaterally and also multilaterally  through agencies like the United Nations, especially the Security Council (Whitaker 2010). One such step was the successful lobbying for UN Security Council Resolution 1373  in 2001 requiring states “to complement international cooperation by taking additional measures to prevent and suppress, in their territories through all lawful means, the financing and preparation of any acts of terrorism” (UN SC Resolution 1373, 2001). Resolution 1373 took the unprecedented step of imposing uniform obligations on all UN member states. Governments must submit periodic reports to the newly created Counter-­ Terrorism Committee (CTC) on their efforts to criminalize, prevent, and punish terrorism-related activities (Whitaker 2010). In 2004, the Counter-­ Terrorism Committee Executive Directorate (CTED) was created to provide the CTC with expert advice and facilitate technical assistance to governments. This, in effect, helped impose a certain standardization on counterterrorism approaches and influenced legislation across the world.  he Policy Process T As a response to the new global requirements, US lobbying and growing concern with terrorist attacks, the Kenyan Government created the Anti-­ Terrorism Police Unit (ATPU) in March 2003 and launched counter-­ terrorism operations in Eastleigh (Amnesty International 2014), Coastal Kenya, and the North Eastern Province, all areas where Al Shabaab was active. However, security agencies conducted egregious human rights violations against Kenyan citizens during these operations (Muslims for Human Rights and Open Society Initiative 2013; Al Jazeera 2014). Human rights violations documented by the media and human rights organizations within the context of counter-terrorism operations are not an exception for the Kenyan Police but rather a continuation of a deeply ingrained pattern. The human rights violations committed by the Kenyan Police are well known and have been documented outside (United States Department of State 2011; Republic of Kenya 2008). Before the 2010 Constitution, the executive’s appointment of senior police leadership without oversight from any relevant agencies made the Kenya Police malleable to the executive’s demand for deployment with impunity to intimidate political opponents.

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Since the new constitution was adopted, the Independent Policing Oversight Authority (IPOA) has documented other cases of police impunity. One that attracted much local and international attention was what occurred in Eastleigh, a neighbourhood in Nairobi where the Somalis constitute a large share of the population. On 5 April 2014, the government launched a security operation dubbed “Operation Sanitization of Eastleigh” aimed at flushing out Al Shabaab adherents/aliens and searching for weapons, improvised explosive devices (IEDs), and other arms. According to Amnesty International (2014) and IPOA (2014), the police officers responsible for the operation conducted themselves in an unethical manner creating considerable human misery including for Kenyan citizens of which many are of Somali ethnicity. During another such operation, several Muslim clerics in Mombasa were killed extra-legally. After over 20 of them had been assassinated, the killing of Ibrahim “Rogo” Omar, a popular cleric, on 27 August 2012, proved to be the tipping point in the relations between the community in Mombasa and the security forces (Kamude 2014). After his killing, protests and riots erupted in Mombasa, with rioters throwing two hand grenades at police, killing at least five officers and injuring several others. This approach not only eviscerated any trust the Muslim community had with the police; it was not effective in fighting terrorism as further attacks occurred including a gruesome attack on Garissa University in April 2015 in which 148 people were killed. Human rights violations by the police were taking place despite reform efforts funded by Western countries, especially the United States and the United Kingdom, who are also providing technical, financial, and training support for counter-terrorist activities. With civil society outcry and media attention, Kenya’s counter-terrorism measures supported with external funds were receiving negative attention. In the case of the United States, the Leahy Law prevents American support for training foreign security forces that commit human rights violations causing US counterterrorism funding to be questioned. Not just in Kenya, but globally, the often disproportionate amount of force that was applied in counterterrorism measures was seen as counterproductive because it eroded the trust between community members and security agents and prevented the latter from obtaining the necessary information to hinder new attacks. In short, the Kenyan experience confirms that the use of a military and law enforcement approach to terrorism and violent extremism has clear limitations. It does not address the broad spectrum of factors that help explain how and why individuals are recruited and incentivized to join or to denounce and

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abandon terrorist groups. A “blanket” approach that treats everyone in the same way leaves little room for rehabilitation and reintegration of former terrorists back into the community. It is against this background that Kenya embarked on a new strategy.  he National Strategy to Counter Violent Extremism T New  thinking entailed a shift towards a more proactive and preventive rather than reactive approach. The aim was to address the issues that make individuals join terrorist groups in the first place and the push factors in the environment. This response coalesced under the umbrella of Countering Violent Extremism (CVE) sometimes seen as the “soft” side of “hard” counterterrorism. CVE as a programme, policy, and intervention is designed to “prevent individuals from engaging in violence associated with radical political, social, cultural, and religious ideologies and groups” and took the form of the 2016 National Strategy to Counter Violent Extremism (Republic of Kenya 2016). As a testimony to the shift, the national government worked closely with multiple stakeholders including the counties to develop the strategy. This contrasted with past practice when security was viewed as an exclusively national government function. The new strategy identifies the county government and several non-state actors as key partners in the realization of the strategy. Kwale, Lamu, and Mombasa have all developed their County CVE Plans, with other counties in the early stages of developing their strategies. With all the new actors, coordination became necessary. Hence, the policy involved the creation of a National Counterterrorism Centre (NCTC) as the principal coordinating body for all CVE activities. The development of the county CVE plans was led by NCTC through its Guide to Developing County Action Plans. The guide identifies the stakeholders to be included when developing the plan: the Governor; County officials; Members of the County Security and Intelligence Committee; Representatives of national government ministries, departments and agencies; Members of the County Assembly; Citizens; Youth representatives; Women’s representatives; legally registered civil society organizations, associations, and trusts; religious leaders and scholars; Researchers at local academic institutions; psychologists and counsellors; business owners and managers; and representatives of philanthropic institutions. The evolution of Kenya’s counterterrorism and Countering Violent Extremism has been to a great degree funded by the United States. According to the Congressional Research Service (2019), “[i]n the

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past decade, the Department of Defense has provided roughly $400 million to ‘train and equip’ support to Kenya”. Kenya continues to enjoy close relations with the United States not just to combat terrorism. Being a top recipient globally of US foreign aid, it receives over $800 million annually. When President Kenyatta visited the White House in August 2018, the two presidents resolved to elevate the bilateral relationship to a Strategic Partnership. Talks focused on counterterrorism (CT) and economic cooperation, but also nearly $900  million in commercial deals were announced and direct flights, once blocked over security concerns, restarted in late 2018. Despite this close relationship, Kenya does not always agree to demands by the US government. An example is when the United States pushed Kenya to adopt counter-terrorism legislation in 2009 and faced a significant push back (Whitaker 2010). As Mazrui et al. (2018) note, “what is important here is that, under intense pressure from the civil society, and fearful of the Muslim reaction, the Kenya Government had to open different versions of the bill to the discussion and was induced to revise the document based on the feedback from its citizens—much to the disapproval of the American government” (ibid.: 27). A revised bill became law under the name of “The Prevention of Terrorism Act, No. 30 of 2012”, although Muslim and human rights organizations remained wary, especially of the loose way the bill defined “terrorism.” They pointed to the problems with the United Kingdom’s CVE strategy called “Prevent” created against the background of increased public fears over the threat of “home-grown” terrorism. Prevent aimed “to stop people from becoming terrorists or supporting terrorism”. By stating that the principal threat the United Kingdom faced emanates from a distorted and unrepresentative interpretation of Islam, Prevent focused solely on Islam and the United Kingdom’s Muslim communities (Open Society 2016). As a result, many Muslims felt alienated, seeing the strategy as a way of demonizing their community and holding all Muslims responsible for terrorism (Lowe 2017). Kenya is still at a nascent stage in the development of CVE plans and policies but some of the same shortcomings as observed in the United States and Britain are beginning to emerge. For instance, the geographic focus of CVE is the same, that is, Muslim majority areas. This means CVE plans are most likely going to be viewed as surveillance of the Muslim community. These plans are extensively drawn from settings that are dissimilar to Kenya. The county plans adopted by Kwale, Lamu, and Mombasa counties, for example, borrow heavily from the Danish Aarhus Model

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although there is no national legal policy framework regarding disengagement and reintegration of former terrorists in Kenya as there is in Denmark.  olicy Outcomes and Enduring Issues P In both the United States and Britain, CVE plans have failed in addressing violent extremism when they rely on the disproven assumption that terrorism can be prevented by monitoring people who express “bad” ideas. The strategy in both countries has effectively alienated key constituencies needed to support the effective prevention of attacks. In Britain, for example, intelligence obtained from referral to the police-led multi-agency “Channel” revealed that 80% of all cases were set aside, implying that thousands of individuals were wrongly referred (Open Society 2016). Finding out the impact of CVE plans, especially at the county level, is made difficult by two factors: (1) implementation of the county CVE plans is at a nascent stage, hence obtaining a complete picture is difficult; (2) isolating a single reason why an individual supports, joins, and exits a violent group is incredibly cumbersome. Anecdotal evidence so far shows that CVE plans have not had a positive impact on structural phenomena but there has been an improvement in the relationship between police and civil society. Instead of treating civil society as “enemy”, the police these days dialogues with representatives of civil society organizations. In the implementation of the plan, civil society and the police have separate and shared functions. This is a positive development that might be applied in other areas of policing beyond the CVE.

Conclusion This chapter has emphasized the important global dimensions of public policy in Kenya and the need to critically scrutinize and understand them in policy analysis and strategy. As elsewhere, these global dimensions, and actors associated with them, produce complex policy deliberations and negotiations. Successful Kenyan public policy, for example, around climate change, requires careful internal and global cooperation, creativity, data and transparency, strong local knowledge, expertise, engagement, and skills in building coalitions of support and compromise when needed. Climate change policy in Kenya, while being part of a global convention and process, was largely driven by a very open process by local experts, civil society, and government champions with a strong legal basis and a

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keen awareness of specific implications for the country. Thus, it was a downwardly accountable process reliant on a local advisory system supported cooperatively from global scientific and civil society networks. In contrast, the counterterrorism/CVE policy may be considered a much less successful policy to date. Based on less data and evidence than the climate change policy, the CVE policy was also influenced by Kenya’s history of being in the American and British sphere of influence, massive and often unaccountable counterterrorism funding, and support for a war in Somalia that engendered significant blowback in terms of terrorist attacks against Kenyans (International Crisis Group 2012). The lack of transparency may serve some Kenyan political actors but even here it is possible to discern a shift in policy emerging out of societal resistance and outcry and ultimately a more consultative process. The lesson learnt from the CVE case is that wholesale borrowing of models from countries with a different background than Kenya creates the potential for blowback, especially when the legal basis is not aligned with the policy. As this chapter has demonstrated, this has led to harm in the form of human rights violations without successfully preventing attacks. The lesson learnt here is that as Kenya continues to be involved in global and “glocal” affairs, the need to build up local capacities to understand and analyse the implications of this trend for Kenya’s wellbeing will only grow.

References Al Jazeera. 2014. Inside Kenya’s Death Squads. https://www.youtube.com/ watch?v=lUjOdjdH8Uk. Alden, Chris. 2007. China in Africa. London: Zed Press. Amnesty International. 2014. Kenya: Somalis Scapegoated in Counter-Terror Crackdown. London: Amnesty International. Boone, Catherine, Alex Dyzenhaus, Ambreena Manji, Catherine W. Gateri, Seth Ouma, James Kabugu Owino, Achiba Gargule, and Jacqueline M.  Klopp. 2019. Land Law Reform in Kenya: Devolution, Veto Players, and the Limits of an Institutional Fix. African Affairs 118 (471): 215–237. Bradshaw, York W. 1988. Reassessing Economic Dependency and Uneven Development: The Kenyan Experience. American Sociological Review 53 (5): 693–708. Congressional Research Service. 2019. Accessed at https://fas.org/sgp/crs/ row/IF10168.pdf. Cooley, Alexander, and John Heathershaw. 2017. Dictators Without Borders: Power and Money in Central Asia. New Haven and London: Yale University Press.

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French, Howard W. 2014. China’s Second Continent: How a Million Migrants Are Building a New Empire in Africa. Visalia, CA: Vintage. Gargule, Achiba, and Monica Lengoiboni. 2020. Devolution and the Politics of Communal Tenure Reform in Kenya. African Affairs 119 (476): 338–369. Glennie, Jonathan. 2008. The Trouble with Aid: Why Less Could Mean More for Africa. London: Zed Books Ltd. International Crisis Group. 2012. The Kenyan Military Intervention in Somalia. International Crisis Group Africa Report No 184. IPCC. 2014. In Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change, ed. Core Writing Team, R.K.  Pachauri, and L.A. Meyer, 1–151. IPCC, Geneva, Switzerland. IPOA. 2014. Monitoring Report on Operation Sanitization Eastleigh Publicly Known as “Usalama Watch”. Nairobi: IPOA International. Kamude, Jimmi. 2014. Gunned Down in Mombasa  – The Clerics That Have Died. IRIN News (USA), No 28. Klopp, Jacqueline M. 2012. Towards a Political Economy of Transportation Policy and Practice in Nairobi. Urban Forum 23, 1–21. Klopp, Jacqueline M., and Abdullahi Boru Halakhe. 2019. Climate Change, Carbon Politics, and Kenya’s Democratic Future. Georgetown Journal of International Affairs, Posted October 8. Klopp, Jacqueline M., and Odenda Lumumba. 2017. Reform and Counter-­ Reform in Kenya’s Land Governance. Review of African Political Economy 44 (154): 577–594. Leys, Colin. 1975. Underdevelopment in Kenya: The Political Economy of Neo-­ colonialism, 1964–1971. Berkeley, CA: University of California Press. Lowe, David. 2017. Prevent Strategies: The Problems Associated in Defining Extremism: The Case of the United Kingdom. Studies in Conflict & Terrorism 40 (11): 917–933. Mazrui, Alamin, Njogu Kimani, and Goldsmith Paul, eds. 2018. Countering Violent Extremism in Kenya: Between the Rule of Law and the Quest for Security, 13–38. Nairobi: Twaweza Communications. Mkandawire, P. Thandika, and Charles Chukwuma Soludo. 1999. Our Continent, Our Future: African Perspectives on Structural Adjustment. Ottawa: IDRC. Moyo, Dambisa. 2009. Dead Aid: Why Aid Is Not Working and How There Is a Better Way for Africa. Basingstoke, UK: Macmillan. Mugo, Waweru. 2013. Kenya’s First Terror Attack Caught Police Unawares. The Standard. https://www.standardmedia.co.ke/article/2000095154/ kenya-­s-­first-­terror-­attack-­. Müller, Christoph, Katharina Waha, Alberte Bondeau, and Jens Heinke. 2014. Hot Climate Change Impacts in Sub-Saharan Africa and Implications for Adaptation and Development. Global Change Biology 20 (8): 2505–2517.

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Muslims for Human Rights and Open Society. 2013. We’re Tired of Taking You to the Court: Human Rights Abuses by Kenya’s Anti-Terrorism Police Unit. Naess, Lars Otto, Peter Newell, Andrew Newsham, Jon Phillips, Julian Quan, and Thomas Tanner. 2015. Climate Policy Meets National Development Contexts: Insights from Kenya and Mozambique. Global Environmental Change 35: 534–544. Njoroge, Joseph M., Beate M.W. Ratter, and Lucy Atieno. 2017. Climate Change Policy-Making Process in Kenya: Deliberative Inclusionary Processes in Play. International Journal of Climate Change Strategies and Management 9 (4): 535–554. Obi, Cyril. 2010. Oil as the ‘curse’ of Conflict in Africa: Peering Through the Smoke and Mirrors. Review of African Political Economy 37 (126): 483–495. Open Society. 2016. Eroding Trust: The UK’s Prevent Counter-Extremism Strategy in Health and Education. London: Open Society. Oreskes, Naomi, and Erik M. Conway. 2010. Merchants of Doubt: How a Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke to Global Warming. London: Bloomsbury Publishing. Osterhammel, Jürgen, and Niels P.  Petersson. 2009. Globalization: A Short History. Princeton, NJ: Princeton University Press. Plummer, Anita. 2019. An Inspiring Climate Victory in Kenya. Foreign Policy in Focus. Accessed at https://fpif.org/an-­inspiring-­climate-­victory-­in-­kenya/. Republic of Kenya. 2008. Report of the Commission of Inquiry into Post-election Violence. Nairobi: Government Printers. ———. 2010. National Climate Change Response Strategy. Nairobi: Government Printer. ———. 2016. National Strategy to Counter Violent Extremism. Nairobi: Government Printer. Schlissel, David. 2019. The Lamu Coal Plant: The Wrong Choice for Kenya. Lakewood, OH: Institute for Energy Economics and Financial Analysis. Accessed at https://ieefa.org/wp-­content/uploads/2019/05/The-­ Proposed-­Lamu-­Coal-­Project_June-­2019.pdf. Thurber, James A., Colton C. Campbell, and David A. Dulio, eds. 2018. Congress and Diaspora Politics: The Influence of Ethnic and Foreign Lobbying. Binghamton, NY: SUNY Press. United Nations Framework on Climate Change (UNFCC). 2012 accessed on 6 March 2021 at ­ https://unfccc.int/process-and-meetings/the-paris-­ agreement/the-paris-agreement United States Department of State. 2011. Country Reports on Human Rights Practices for Kenya. Washington, DC: Department of State. USAID. 2017. Greenhouse Gas Emissions in Kenya. Washington, DC: USAID. Accessed at https://www.climatelinks.org/sites/default/files/asset/ document/2017_USAID_GHG%20Emissions%20Factsheet_Kenya.pdf.

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Watts, Michael. 2004. Resource Curse? Governmentality, Oil and Power in the Niger Delta, Nigeria. Geopolitics 9 (1): 50–80. Whitaker, E. Beth. 2010. Compliance Among Weak States: Africa and the Counter-­ Terrorism Regime. Review of International Studies 36 (3): 639–662. Williamson, John. 2008. A Short History of the Washington Consensus. In The Washington Consensus Reconsidered: Towards a New Global Governance, ed. Narcis Serra and Joseph E. Stiglitz, 14–30. Oxford: Oxford University Press.

CHAPTER 4

The Powers of Agenda-Setting: The Role of Politicians and Experts Winnie V. Mitullah

Introduction The COVID-19 pandemic has brought to attention an issue that does not always receive the recognition it deserves in public policy: who defines the problem and thereby set the agenda for handling it? The fight against the virus has laid bare a tug-of-war between political leaders and public health experts. Countries have chosen strategy according to who is most influential. Thus, where public health experts have been convincing enough in their argument that health comes before economics, governments have adopted quite strict measures, including lockdown and quarantine. Where, on the other hand, politicians have had their way, more lenient measures have prevailed such as social distancing and wearing masks. In some countries, the approach has been even more lenient, ignoring scientific knowledge and instead relying on praying and God’s intervention. In some African countries, for example, Tanzania, the President has been the flag-­ bearer of such reliance on parochial values. Who defines the problem,

W. V. Mitullah (*) Institute for Development Studies, University of Nairobi, Nairobi, Kenya e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 G. Onyango, G. Hyden (eds.), Governing Kenya, https://doi.org/10.1007/978-3-030-61784-4_4

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therefore, is important, because it prioritizes certain values at the expense of others, indicating that agenda-setting carries powers by steering the minds of others in a direction that they would otherwise not have chosen to do. In examining who defines the policy problem in Kenya, the chapter begins by discussing the role of problem identification and definition in policy theory. It shows how this component of policymaking is often overlooked because the policy process is conceptualized in linear input output terms rather than as a discursive exercise in which the human factor is decisive. It addresses three questions that are crucial for understanding its significance: (1) What is the context in which it takes place: elitist or pluralist? (2) Which values tend to prevail: political or technical? (3) How does problem definition affect policy outcome? Following this conceptual introduction, the chapter proceeds to trace the evolution in Kenya from a centralized elitist to a decentralized pluralist governance system with many actors engaging in the process. This serves as a background for analysing policy problem identification in the country’s housing sector. The chapter concludes by summarizing the complexity of policy identification involving multiple stakeholders, a process in which the poor and marginalized tend to be the losers.

Problem Definition in Policy Theory Many analysts tend to treat the policy process as an input-output system, much like Easton (1965) approached the study of politics. This helps understand how ideas are turned into policy and come out “at the other end” as policies ready for action. It highlights the key role that governments play in issuing authoritative policy directives for people to follow. Hence, the notion that policy is public. Policymaking as a concept applies to organizations other than the government, but it is only the latter that issues public policies, as Ranney (1968) and Nadel (1975) underline. Studies of how policies come about do not always pay enough attention to what happens “up-front” before decision-makers sit down to formulate policy, yet what precedes the formulation is perhaps the most decisive element in the policy process. What we refer to here is the identification and not the least the definition of the problem that is meant to be turned into policy. How it is defined is not only decisive for what government proceeds to do, it is also indicative of who is in charge. It is conventionally referred to as “agenda-setting” and it gives an edge to those who have formulated it.

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A major reason why problem definition tends to be less well covered in much of policy theory is that analysts approach it as science with a linear trajectory. This approach assumes that a rational decision must integrate complete and consistent knowledge of all alternatives, all consequences, and all preferences with a decision rule that selects the alternative with the highest expected value (Brunner 1991). As many critics of this view have noted, for example, Simon (1947) and Lindblom (1959), reaching the optimal choice is rarely possible. Policy analysis and, above all, policy implementation does not take place in a vacuum. It is embedded in social and political relations and reflects the mental frames that actors bring to the policy table. As more and more analysts have come to accept this point, theory has moved in the direction of policymaking as art, notably as a discursive exercise. Policy definition or framing results from policy discourses where actors define and interpret policy problems and solutions through social constructivism (Braun 1999). This entails defining policy ideas through construction and contestation, which change the policy definition through dynamic and interactive discursive practices depending on actors and their interests (Price and Reus-Smit 1998) and the powers they leverage in the policy field. Holmes and Scoones (2000) argue that for a common vision to be realized, actors, institutions, and networks must share narratives and discourses. This assumes that they can build a system of codes of conduct and behaviour that keep narratives and discourses going (Leach et  al. 2010). As Nair and Howlett (2017) have noted, discursive exercises are not necessarily making the policy more predictable or optimal, but they produce outcomes that are satisfactory to relevant stakeholders and thus enjoy legitimacy. It raises questions that the linear modelling of policy-making overlooks. This chapter takes up three such questions that are relevant for understanding the role of problem identification or definition in a discursive policy context. The first concerns how wide the exercise of defining the problem is, the second who qualifies for participation, and, third, what are its power implications. Elitism Versus Pluralism In the contemporary era of open governance, public policymaking has moved from a simplistic elite state-centric field to a complex arena with many actors representing competing ideas and interests all of whom may wish to have a say in policy definition (Howlett et al. 2016). In state centric authoritarian regimes which are less common today, governments,

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through politicians assisted by bureaucrats, assume ownership of the policymaking process by defining, formulating, and implementing policy in an elitist, top-down manner. This approach has been increasingly replaced by an inclusivist and pluralist form of governance that incorporates networks of governmental and non-governmental organizations (Kooiman 2003). This is a nuanced policy environment, “involving CSOs and individuals working on policy questions with government in different ways according to the context” (Stren forthcoming). In this approach, problem identification intersects with all components of the policymaking process, opening doors for actors other than politicians and bureaucrats to participate in problem identification. The principal differences between an elitist and a pluralist approach to problem identification and definition are summarized in Table 4.1. By emphasizing governance, the elitist approach prioritizes the outcome. It presupposes that politicians assisted by bureaucrats and expert advisors are capable on their own to come up with the best policy choice. Therefore, broadening participation in defining the problem only makes policymaking more complex and tends to delay solving the problem and agreeing on how it should be defined. The pluralist approach, in contrast, prefers to view problem definition as an issue of representation: the broader it is, the more likely it is to reach an agreement that would facilitate turning policy into practice. Unlike the decision rule in the elitist approach which typically is formulated as “directive”, the pluralist approach tends to agree on a decision rule that is more like an “instruction”, that is, less of a command or order than a common-sense agreement for action. Politicians Versus Experts Because development is primarily about social and economic advancement and how opportunities and resources are distributed among people, the social sciences have come to play a key role. The use of social Table 4.1 Differences between elitist and pluralist approaches to problem identification

Indicator

Elitist

Pluralist

Political emphasis Governance Representation Sphere of involvement Exclusive Inclusive Nature of decision rule Directive Instructive Source: Author and editors

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scientists in policy dates back to 1865 when the American Social Science Association was established. One of its goals was to guide those making public policy to identify the best practical means of promoting the rule of law, including amendments, advancing education, and many other fields that required better governance. In 1923, the Association folded and was replaced by the Social Science Research Council with a similar mandate of informing policy and governance. Both these efforts were based on the positivist position that social science can explain and predict patterns of social behaviour with enough accuracy to suggest effective and efficient means to attain specific policy objectives (Jennings and Callahan 1983). Although these early efforts were relatively modest in their claims, the concept of “expert” has since been appropriated by many. It became especially popular when social scientists found themselves at centre stage in the 1960s thanks to the Lyndon Administration’s ambitious Great Society strategy. New tools of policy analysis came into common use, such as sophisticated micro-­economic theories and models, systems theory, decision theory, cost benefit analysis, and user surveys (Jennings and Callahan 1983, p. 5). Conventional policy theory assumes that politics and rationality come together in a constructive fashion. Politicians recognize the significance of facts and advisors, on their part, know that their recommendations must fit a certain value frame. Thus, even if they may differ, these differences are never so large that they rule out a consensual conclusion. The combination of prevalence of secular values and scientific facts facilitates such outcomes and makes problem identification and definition relatively noncontroversial. Problem identification and definition, however, is not always the way it is described in theory. It is surrounded by uncertainties and politicians and their expert advisors do not always agree as comfortably as theorists like Lindblom (1959) have made us believe. This is especially true in the developing world where problem definition usually entails a move into “unchartered terrain”. Kenyan President Uhuru Kenyatta has given his own account of the challenges involved in finding an acceptable problem definition of how to proceed with a national policy on COVID-19 (see Box 4.1). In common parlance in Western countries, the word “expert” connotes possession of valuable knowledge that is independent of any particular context (Emblem 1995). It further assumes training and experience associated with a title and prior credentialing process that usually includes certification by a governmental agency or professional association

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Box 4.1  President Kenyatta Facing Policy on COVID-19

To make a decision on whether to open the economy or not, the President turned to what he referred to as his ‘brain trust’—experts made up of the finest doctors, research scientists and public practitioners for counsel. And I must admit that opinions were divided on how we are to advance against this virus. Some, including myself, wanted to open-up now. That was and is still my desire. I wanted to open-up at the earliest opportunity and get the economy going. More so as Kenya was rated the third largest economy in Sub-Saharan Africa this week. Others held a contrary view. They borrowed from history, scientific models, and current experiences the world over to argue against opening-up. With these two viewpoints, I was not dealing with a RIGHT or WRONG. I was caught in between two rights. Those who wanted to open-up are right and those opposed to opening are also right. And this clash of two rights placed me on the Horns of a Dilemma. In the absence of scientific consensus amongst experts in the medical, research and public sectors, I asked for scenarios, I wanted to know the worst case scenario and the best options available for us to contain the spread of the disease without affecting the economy irreversibly. And I wanted these scenarios built around 47 raw facts because we have decided to combat this pandemic in an open and transparent manner. (8th Presidential Address on Coronavirus, State House, Kenya, 6 June 2020) (Cicourel 1999). These attributes empower the expert to access a knowledge base enhanced with scientific methodology perceived as authoritative. An “expert” participating in policymaking, for example, should have the ability to understand concepts in the relevant discipline or field, gather information from stakeholders and the policy environment, and on such basis articulate a composite knowledge with alternatives for policymakers to consider. An expert in this conceptualization is not restricted to an academic or research department but might be attached to governments and politicians as advisors, while others work in task teams. The “expert” concept has undergone at least three significant modifications in recent years. The first is whether the expert should be just an analyst or also serve as an advocate of a specific policy option. In the past,

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it was taken for granted that the expert would produce the facts and leave the rest to the politicians to decide. With governance becoming more complex and multi-layered, such a clear-cut separation of roles is not always possible or desirable. The expert opinion needs to be present at many points in the policy process and thus may require the expert to leave the comfort zone of being an impartial or neutral participant and instead step out on the policy floor to argue for a specific position on an issue (Fischer and Forester 1993). Argumentation is important up-front as well as at subsequent occasions as policy develops. The modification that has taken place is in terms of what skills are most important for policy success. While facts are crucial so is the communication of facts. More and more emphasis has been laid on the latter with experts in information technology and communication being hired to “sell” or “market” a given policy. These people are often referred to as “spin doctors” because they tend to twist the facts in ways that undercut their status as true representations of reality. The third such modification has come out of the experience with expert advice in developing countries and relates to what kind of persons possess the most relevant knowledge for problem identification and resolution in situations where established science does not always prove the obvious answer. As Hansson (1996) and Mathijssen et  al. (2008) have emphasized, clarification of uncertainties is crucial in problem identification. In African countries, these uncertainties are multi-dimensional covering (1) demarcation of policy boundaries, (2) consequences of possible options, (3) availability of information, and (4) choice of values among key decision-makers and relevant stakeholders. Many of the answers to overcome these uncertainties, whether they are about values or facts, are not necessarily most effectively provided by experts trained in Western social science methods but by local people relying on indigenous knowledge. Although they do not have the professional credentials, they are experts in their own way by holding insights that help to create clarity where others only see uncertainty. In countries like Kenya, therefore, we are dealing with four types of actors with a possible bearing on problem identification and definition, as summarized in Fig. 4.1. The left column refers to a type of political leaders: whether they seek answers in parochial or secular values. The right column points to type of expert knowledge, indicating that both indigenous and modern forms of knowledge are potentially relevant. Because of the prominent role that Western donors play in African policy circles modern scientific knowledge is generally prioritized over indigenous knowledge. Politicians vary in

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Local orientation Parochial leaders Politicians Secular leaders

Indigenous knowledge holders

Experts

Modern scientists

Fig. 4.1  Political leaders and experts in African countries Local orientation. (Source: Author and editors)

their interest and ability to relate to science but those with a secular outlook tend to find it easier than those who rely on parochial beliefs and values. The Power of Problem Definition Problem definition, as indicated earlier, has become increasingly pluralist and expertise is nowadays sought from variable sources and used not only by the government but also by non-state actors to boost their influence on problem definition and policymaking at large. There has been an accompanying trend in the way “power” in policymaking has been analysed. Understanding the role of power in public policy transcends the original behavioural use of the concept and is nowadays analysed in institutional or structural terms. Analysis of power in policymaking dates back till the middle of last century when Robert Dahl (1961) produced his study of “who governs?”, an analysis of power in decision-making inside his home-town government— New Haven, Connecticut. It became a landmark study not only for those interested in local governance but also for how power features in policymaking. Dahl assumed that power is manifest and can be studied empirically. It is evident in who prevails in a specific case or who vetoes proposals by others. He summarized his behaviourist approach by suggesting that power lies in how A gets B to do what he would otherwise not have done. It did not take long, however, for critics to point out the limitations of Dahl’s approach. Bachrach and Baratz (1962), referring to the two “faces” of power, argued that it is evident not only in concrete decisions—the behaviourist position—but also in the “mobilisation of bias”, that is, the idea that some issues get organized and pursued in politics while others

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are left out. More specifically, a set of predominant values, beliefs, rituals, and institutional procedures operate systematically and consistently to the benefit of certain individuals and groups at the expense of others. There is always a group—often an elite minority—that sets the agenda. To understand how power operates, therefore, it is necessary to study both decisions and nondecisions. It means that power is not always manifest; it may be latent. The notion that power is latent is also very much present in the post-modernist analysis of Michel Foucault, notably in his study of the relationship between knowledge and power. Power is latent because it works through people rather than on them (Foucault 1980). Certain ideas or belief systems gain power as they become more widely disseminated to people and get treated as common knowledge. These hegemonic systems of knowledge produce their own figures of authority, for example, doctors in hospitals or priests in churches, who serve as gatekeepers in deciding what is right or wrong, normal or deviant. Within a given belief system, certain views, thoughts, or actions are ruled out by prevailing values. Unlike writers such as Gramsci (1971), who treat power as working on people and therefore operate with an oppositional power-resistance framework of analysis, Foucault treats power in less clear-cut terms. Both of them assume that other discourses can contest hegemonic belief systems but Foucault, unlike Gramsci, does not attribute the change to organized resistance but rather to the gradual permeation of new ideas that occur as the result of independent action by several diverse authority figures. It means that it is more difficult in Foucault’s writings to trace the way power works visually. Yet another position on how power works is structural and argues that potential issues are kept out of politics not only because of decisions by particular individuals or institutional practices but also because the real interests of those who are excluded from power may never be articulated in the first place. Social forces or structures prevent some from being able to express their own views to challenge the status quo. As Steven Lukes (1974, p. 24) asks, “is it not the supreme and most insidious exercise of power to prevent people, to whatever degree, from having grievances by shaping their perceptions, cognitions and preferences in such a way that they accept their role in the existing order of things, either because they can see or imagine no alternative to it, or because they see it as natural and unchangeable, or because they value it as divinely ordained and beneficial?” The three approaches are summarized in Table 4.2.

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Table 4.2  Three principal approaches to the study of power in policymaking Indicator/ approach

Behaviourist

Institutionalist

Structuralist

Objective

Who prevails in decision-making Visible Through powerful decision-maker

Who mobilizes bias to favour certain values Visible/latent Through “gatekeepers”

How structures limit choice Latent Through structures

Manifestation Operation

Source: Author and editors

The notion of power as manifest or latent is especially relevant for agenda-setting and thus for understanding whom power includes and excludes. Power is manifest in decision-making situations where donors meet with representatives of partner governments (Fejerskov 2016). For example, the global agenda of the development partners prioritize issues that leave African governments with little choice but to comply (Dingwerth and Pattberg 2009). Because power is not only wielded to preclude others but also embedded in social structures, for example, patriarchal systems, there has been a growing interest in the concept of “empowerment”, more specifically how disadvantaged groups in society can benefit more from government policy. Its arrival on the policy scene is the result of the mobilization of societal actors who claim their right to influence how agendas are set and policies agreed upon. The biggest losers in policy problem identification are often those with least power, especially the poor and the marginalized who are not organized into a social movement and must rely on somebody else to voice their concerns. Politically, a focus on the marginalized tends at first to not be very contentious, but when it comes to actual policy negotiation and lobbying, the issue becomes more contested with the poor ending up at the losing end, especially if their representatives cannot leverage the power and end up in winning coalitions (Jennings and Callahan 1983). Even if international campaigns like the Millennium Development Goals (MDGs) and more recently the Sustainable Development Goals (SDGs) provide leverage in addressing issues of empowering the poor and marginalized communities, building winning coalitions is not always easy. Despite the pressure from a growing number of civil society organizations (CSOs) to define problems affecting the poor in ways that engage them in policymaking, the political rhetoric accompanying the agenda-setting is rarely

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followed up in practical action, as will be further discussed in the next section.

The Kenyan Policymaking Context Understanding policy problem identification and definition in Kenya requires acknowledgement of the colonial history of policies and planning context which continued to inform centralized governance decades after independence (Wunsch and Olowu 1990; Hyden and Bratton 1992; Cohen 1993; Mwangi 1997). In the days before independence, policy problem identification remained the preserve of colonial administrators, who were assumed to know the problems facing their subjects and designed measures for intervention accordingly. For the first couple of decades, the independent Kenya government did not change the centralized colonial approach and enjoyed a free hand in problem identification and policymaking using largely an elitist approach (Stren 1975). It was supported by consultants who assisted in problem identification. For example, it was a United Nations consultant report that provided the empirical evidence of the country’s serious housing problems showing that African housing in urban areas was poorer than that of other races (Bloomberg and Adams 1964). The Africans were the majority and their living areas were overcrowded, lacked required infrastructure and services, and needed policy intervention. The government acknowledged the poor housing situation noting that the problem affected all income groups, but that low-cost housing construction would be the top priority of its public housing policy. The UN report was followed up in Sessional Paper No. 5 of 1966/67 on “Housing Policy for Kenya” (Republic of Kenya 1966). It established two agencies, the National Housing Corporation (NHC) and the Housing Finance Company of Kenya (HFCK) to implement the policy. Government funds were to be used mainly for providing low- to medium-cost housing and supporting rural housing improvement. The NHC resources would be employed for low-cost housing in cooperation with local authorities and HFCK was to provide finance for mortgages related to more expensive housing. While these policy recommendations seemed to be right, implementation associated with the variable housing needs proved to be another story for at least two reasons: (1) elite bias and ignorance and (2) conflicts between politicians and technical experts.

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Most politicians led by the first President of Kenya, Mzee Jomo Kenyatta, did not fully grasp the implications of delivering housing, especially to the urban poor. Issues of financing, like income and affordability which have implications for house design and standards, were unfamiliar concepts to these politicians. This brought them in direct conflict with the experts, who at that time were planners and engineers supported by expatriate consultants. The political elite favoured policies of capital accumulation over redistribution (Fourie 2014). Temple and Temple (1980) argued that the closed nature of the Kenyan political process led politicians and civil servants to respond more to preferences and needs of the city’s better-­ off residents than those of the poor. These government officials shared middle-class consumption aspirations and they also benefited by allocating houses to themselves, their elite colleagues, and their supporters. In urban areas such as the City of Nairobi, there were serious differences between politicians and technical experts on the type of housing that should be built for low-income groups. The former, including the President, disagreed with the design of low-income housing proposed by planners and architects. They preferred housing units developed on separate plots (Daily Nation, 24 July 1972), which were costly and not affordable to the urban poor. The technical experts had to modify their design to suit the politicians thereby contributing to increased cost and a smaller number of housing units built (Temple and Temple 1980). This elitist approach has since evolved in a more pluralist direction. The rise of civil society organizations has provided platforms for the use of technical expertise that was absent in the first three decades after independence (Struyk and Nankman 1986). Since the 1990s, it has become increasingly common to hire experts not only from agencies such as the World Bank and United States Agency for International Development (USAID), but also from local universities and research institutes. This gradual evolution of the policy environment culminated with the adoption of the 2010 Constitution. It provides for participatory governance, including mandatory inclusion of stakeholders in the entire policymaking process. It applies to all sectors and thus helps to advance the growth of civil society. This more pluralist environment, however, becomes a challenge to the archetypical social science experts who are being pulled in different directions by rivalling stakeholders, be they politicians, bureaucrats, or organized interest. It is in this pluralist governance context that this chapter moves on to assess the role of experts and politicians in defining policy problems in the housing sector in Kenya, and how their engagement affects ordinary citizens.

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Experts and Politicians Housing is central to development and involves multiple actors and interest groups (Mayo 1991, p. 5). First, consumers have different tastes and demands with respect to size, type, location, access to financing, infrastructure, and services. Contractors, on their part, are most interested in adequate supply of land, infrastructure, building equipment, skilled labour, and regulatory issues. Financiers compete for deposits with other financial institutions to lend at positive interest rates and want to see adequate foreclosure laws. Local and national governments, finally, also have their concerns, the former focusing on infrastructure and services to ensure public health, safety standards, and environmental quality, while the latter works on achieving adequate affordable housing for all, including ensuring that targeted subsidies are available to assist households which cannot afford minimum housing, and housing is integrated into economic planning. Knowing who defines the problem in such a wide configuration of actors and interests is not a simple task. In recent years, scholars who study the policymaking process acknowledge that the role of a typical expert delivering objective knowledge in a neutral manner is no longer especially relevant (e.g. Newman et al. 2012). They argue that the evidence-based policymaking that is practised today takes into consideration a broad range of research evidence, including the views of citizens, other stakeholders and evidence from practice and implementation. This type of evidence gathering is often done as commissioned research by interest groups and is now standard in all sectors in Kenya. In most cases, it is done by an expert or a team of experts, and its eventual use depends on who commissioned the research. The production of the current Kenya Medium-Term Plan, 2018/2022 (Republic of Kenya 2018) provides a good example of the multi-layered ways in which problems are defined. The rationale for this elaborate policy consultation is to leverage inputs from stakeholder to avoid backlash once problem identification and drafting of a policy is complete. For example, the reference terms for the Working Groups included undertaking a situation analysis of the sector to highlight achievements made, constraints in reaching targets, as well as outstanding challenges, including remaining inequalities in respect to gender and location. They were also charged with identifying policy, legal and institutional frameworks as well as reforms required in Kenyan policymaking (see Box 4.2).

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Box 4.2  Problem Definition for Kenya’s Medium-Term Plan

Preparations of the Plan included 24 sector working groups reporting to a National Steering Committee (NSC) chaired by the Head of the Civil Service also serving as Chief of Staff. Included in the Steering Committee were all Principal Secretaries, Head of the Presidential Delivery Unit, and Director-General of the Vision 2030 Secretariat. The second layer is the MTP National Stakeholders Forum (NSF) chaired by the Cabinet Secretary for Devolution and Planning and cochaired by the Kenya Private Sector Alliance (KEPSA). Other members include Chair of the Council of Governors, UN Resident Coordinator representing UN agencies, Chair of Development Partners Forum, Chair of the NGO Council, Chair of Maendeleo ya Wanawake (women’s umbrella organization), and other key stakeholder groups such as youth, people living with disabilities (PWDs), media, religious organizations and trade unions. The forum was responsible for gathering views of all stakeholders and getting consensus on MTP. The third layer, composed of 24 Working Groups, was the main nerve of the MTP preparation. Every working group was chaired by the relevant Principal Secretary with each appointing its own co-­ chair among members. These groups focused on specific issues of development, including population, urbanization, and housing. Membership included experts from universities, research institutes, KEPSA, international and local NGOs, and other invited organizations. In the middle of the three layers was the MTP Technical Committee chaired by the Economic Planning Secretary, with the Head of Macro Planning in the State Department of Planning and Statistic serving as Secretary. Members of the Technical Committee comprised of secretaries of the working groups. They were responsible for preparing brief and necessary documentation for NSC and NSF meetings. Source: Republic of Kenya (2018) The UN-Habitat that was established in 1978 with headquarters in Nairobi has been an important stakeholder in Kenyan housing development. Established as a special UN agency overseeing human settlements and sustainable human settlements its physical presence in the Kenyan

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capital has put extra pressure on the government to take housing seriously. The UN agency has also catalysed bringing additional support for housing and sustainability issues from international donors. Its experts have participated in problem definition and have encouraged the Kenyan government to move from an elitist to a pluralist governance approach and more generally educate members of the political elite about the details which need to be considered to forge policies that address not only the already well-to-do but above all the low-income groups in the cities. One issue that demonstrates these changes in government understanding and the outlook is what to do with housing in the slum areas. Like the colonial administrators had done, the Kenya government was initially convinced that demolition of the houses in these areas was the right thing to do. In the 1974/1978 National Development Plan (Republic of Kenya 1974), the government announced its decision to abandon demolition in favour of improvement of existing buildings however inadequate they were. This ushered in policy interventions through the sites and services and slum upgrading schemes funded by the World Bank and USAID under the rubric of Kenya Slum Upgrading Programme (KENSUP). The schemes were meant to target low-income earners but ended up benefiting also middle-income earners, politicians, and their clients as owners of property in the slums (Mitullah 1985, 1993). This triggered public protests and saw the formation of CSOs advocating for housing for the poor. At the same time, there was an on-going agitation for governance reforms calling for inclusive policymaking and governance of public affairs. These processes converged with the Third Wave of democratization (Huntington 1991) of the late 1980s which began pushing most African states, including Kenya, to embrace multi-party democracy embedded in a pluralist form of governance.

Conclusion Problem identification and definition of issues for policy formulation in Kenya have come a long way from the elitist and closed manner, in which the government operated in the first couple of decades after independence. As governance has gradually become more open, especially after 1992, the exercise of defining problems for policy purpose has become more complex involving multiple actors. Technical experts representing organizations other than government participate side-by-side with politicians and civil servants as the cases of the housing sector and the Third

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National Development Plan covered earlier highlight. This does not mean that all issues have been solved. As evident in studies of the housing sector, there continues to be a mismatch between supply and demand. In Kibera, for example, the units that have been built are not affordable for those already residing there with the result that owners, to make it, must invite others to occupy what is meant to be a unit for a small household. Reaching the poor and marginalized is still a housing policy challenge, but with the growing participation by not only the government but also civil society and private sector, Kenya is much better prepared today to tackle these outstanding issues. It has a long housing sector policy experience and with the 2010 Constitution, there are new pressures on the government to ensure that it facilitates the participation and input from all stakeholders concerned.

References Bachrach, Peter, and Morton S.  Baratz. 1962. Two Faces of Power. American Political Science Review 56 (4): 947–952. Bloomberg, L. N. and Abrams C. 1964. UN Mission to Kenya on Housing. Nairobi: Government Printer. Braun, Dietmar. 1999. Interests Or Ideas? An Overview of Ideational Concepts in Public Policy. In Public Policy and Political Ideas, ed. D. Braun and A. Busch, 11–29. Cheltenham: Edward Elgar. Brunner, Ronald D. 1991. The Policy Movement as a Policy Problem. Policy Sciences 24 (1): 65–98. Cicourel, A. V. 1999. ‘Expert’, Journal of Linguistic Anthropology, 9 (1-2): 72–75. Cohen, John M. 1993. Importance of Public Service Reform: The Case of Kenya. Journal of Modern African Studies 31 (3): 449–476. Dahl, Robert A. 1961. Who Governs? New Haven, CT: Yale University Press. Daily Nation. 1972. No More Shabby Houses for Our People. Says Mzee Jomo Kenyatta, July 24. Dingwerth, Klaus, and Philipp Pattberg. 2009. World Politics and Organizational Fields: The Case of Transnational Sustainability Governance. European Journal of International Relations 15 (4): 707–743. Easton, D.  1965. A Framework for Political Analysis. Englewood Cliffs, HJ: Prentice-Hall. ———. 1968. The Study of Policy Content: A Framework for Choice. In Political Science and Public Policy, ed. Austin A.  Ranney. Chicago: Markham Publishing Co. Emblem, Valerie. 1995. Who Is the Expert? Development and Practice 5 (3): 232–236.

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Fejerskov, Adam M. 2016. Understanding the Nature of Change: How Institutional Perspectives can inform Contemporary Studies of Development Cooperation. Third World Quarterly 37 (12): 2176–2191. Fischer, Frank, and John Forester, eds. 1993. The Argumentative Turn in Policy Analysis and Planning. Durham, NC: Duke University Press. Fourie, Elsje. 2014. Model Students: Policy Emulation, Modernization and Kenya’s Vision 2030. African Affairs 113 (453): 540–562. Foucault, M. 1980. Power and Knowledge: Selected Interviews and Other Writings, 1972–1977. New York, NY: The New Press. Gramsci, Antonio. 1971. Selections from the Prison Notebooks. London: International Publishers. Hansson, Sven O. 1996. Decision under Uncertainty. Philosophy of Social Sciences 26 (3): 369–386. Holmes, Tim, and Ian Scoones. 2000. Participatory Environmental Policy Processes: Experiences from North and South. IDS Working Paper No 113. Falmer, Sussex: Institute of Development Studies at the University of Sussex. Howlett, Michael, Allan McConnell, and Anthony Perl. 2016. Moving Policy Theory Forward: Connecting Multiple Stream and Advocacy Coalition Frameworks to Policy Cycle Models of Analysis. Australian Journal of Public Administration 76 (1): 65–79. Huntington, Samuel P. 1991. The Third Wave: Democratization in the Late 20th Century. Norman, OK: University of Oklahoma Press. Hyden, Goran, and Michael Bratton, eds. 1992. Governance and Politics in Africa. Boulder, CO: Lynne Rienner Publishers. Jennings, Bruce, and Daniel Callahan. 1983. Social Science and the Public Policy-­ Making Process. Hastings Centre Report 13 (1): 3–8. Kooiman. 2003. Governing as Governance. London: Sage Publications. Leach, Melissa, Ian Scoones, and Andy Sterling. 2010. Dynamic Sustainabilities: Technology, Environment, and Social Justice. London: Earthscan. Lindblom, Charles E. 1959. The Science of ‘Muddling Through’. Public Administration Review 19 (1): 79–85. Lukes, Steven. 1974. Power – A Radical View. London: Palgrave Macmillan. Mathijssen, Judith, Arthur Petersen, Paul Besseling, Adnan Rahman, and Don Henk. 2008. Dealing with Uncertainties in Policy Making: Final Report on the Conference dealing with Uncertainty in Policymaking. The Hague: Netherlands Environmental Assessment Agency. Mayo, Stephen K. 1991. Housing Policy and Housing Research: The View from the World Bank. Paper Presented at the European Network for Housing Research Conference, Istanbul. Mitullah, Winnie V. 1985. A World Bank Upgrading of Squatter Settlement: A Case Study of Migosi Slum Upgrading Scheme. MA Thesis, University of Nairobi, Department of Government.

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———. 1993. State Policy and Urban Housing in Kenya: The Case of Low-­ Income Housing in Nairobi. University of York, UK: Institute of Advanced Architectural Studies. Mwangi, Isaac Karanja. 1997. The Nature of Rental Housing in Kenya. Environment and Urbanization 9 (2): 141–160. Nadel, Mark V. 1975. The Hidden Dimension of Public Policy: The Private Governments and the Policy Making Process. Journal of Politics 37 (1): 2–34. Nair, S. and Howlett, M. 2017. Policy Myopia as a Source of Policy Failure: Adaptation and Policy Learning under Deep Uncertainty. Policy and Politics 45 (1): 103–118. Newman, Kirsty, Catherine Fisher, and Louise Shaxson. 2012. Stimulating Demand for Research Evidence: What Role for Capacity Building? IDS Bulletin 43 (5): 17–24. Price, Richard, and Christian Reus-Smit. 1998. Dangerous Liaisons? Critical International Theory and Constructivism. Journal of International Relations 4 (3): 259–294. Ranney, A. 1968. Political Science and Public Policy. Chicago, Markham Publishing Co. Republic of Kenya. 1966. Sessional Paper No 5: Housing Policy for Kenya. Nairobi: Government Printer. ———. 1974. Development Plan 1974/78. Nairobi: Government Printer. ———. 2010. The Constitution of Kenya 2010. Nairobi: Government Printer. ———. 2013. Second Medium-Term Plan, 2013–2017: Transforming Kenya: Pathway to Devolution, Socio-Economic Development, Equity, and National Unity. Nairobi: Government Printer. ———. 2018. Third Medium-Term Plan 2019–2022: Transforming Lives: Achieving Socio-economic Development Through the ‘Big Four’. Nairobi: Government Printer. Simon, Herbert A. 1947. Administrative Behavior: Decision-Making in Administrative Organizations. New York: The Free Press. Stren, Richard. 1975. Urban Policy and Performance in Kenya and Tanzania. Journal of Modern African Studies 13 (2): 267–294. ———. forthcoming. International Agencies and Urban Policy Diffusion. In Handbook of Policy Transfer Research, ed. Osmany Porto de Oliveira. Cheltenham, UK: Edward Elgar, Chapter 18. Struyk, Raymond, and P. Nankman. 1986. Developing Housing Strategy for Kenya: Recent Housing Production, Market Development and Future Housing Needs. Washington, DC: The Urban Institute. Temple, Frederick T., and Nelle W. Temple. 1980. The Politics of Public Housing in Nairobi. In Politics and Policy Implementation in The Third World, ed. Merilee S. Grindle, 224–249. Princeton, NJ: Princeton University Press. Wunsch, James S., and Dele Olowu, eds. 1990. The Failure of the Centralised State: Institutions and Self Governance in Africa. Boulder, CO: Westview Press.

CHAPTER 5

Legislative Policymaking in Kenya Gedion Onyango

Introduction Legislatures are expected to play a key policymaking role in democracies. There is plenty that has been written on how they operate and their degree of influence on public policy processes in both presidential and parliamentary systems of government, mainly drawing from the American and European experiences. This literature highlights issues of law-making, accountability, and representation and is based on “pure” presidential or parliamentary systems with their own historical roots, including a political economy based on interests organized and driven by the economic production process in society. Legislatures in African countries, including Kenya, are hybrid institutions functioning in a different form of political economy. They are quasi-presidential, that is, incorporating parliamentary theory into presidentialism. Furthermore, as discussed in Chap. 2, social formations do not rest in production but consumption. Politics is foremost about sharing the national pie—even if it is not necessarily in an even manner.

G. Onyango (*) Department of Political Science and Public Administration, University of Nairobi, Nairobi, Kenya e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 G. Onyango, G. Hyden (eds.), Governing Kenya, https://doi.org/10.1007/978-3-030-61784-4_5

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Our understanding of African legislatures has improved in recent years, not the least thanks to the seminal volume edited by Barkan (2009), but there are still gaps to fill. With specific reference to Kenya, it has become important to examine how legislative policymaking has been affected by the 2010 Constitution which since its full implementation in 2013 regulates political life in the country. This chapter is devoted to this purpose and is organized into three main sections. The first deals with an overview of the functions that legislatures perform in public policymaking and what we know about the behaviour of legislators in Africa. It is followed by an account of how legislative policymaking has changed in Kenya since colonial times. The third section analyses the legislature in the country’s wider political context.

Legislative Functions The definition of legislative policymaking builds on Oppenheimer’s notion of public policy that broadly links together the technical and political processes of legislative policymaking. This includes facets such as “policy decisions (the actions by which legislators give direction and content to policy activities) and policy statements (the formal expression of policy in terms of legislation) as well as actual policy outputs” (Oppenheimer 1983, p.  552). In its wider political context, legislatures function as both an independent and dependent variable. They take their clues from existing structures and behaviours, but their rationale is also to reshape them. Table 5.1 summarizes key legislative functions in theoretical terms. The dual role is highlighted in the distinction that is often made with reference to legislatures between their roles as representative and governing institutions. The former identifies its “input”, and the latter its “output” function in the political system. Both are important but the balance between them varies from system to system. In competition with the executive and, less so, the judicial branch of government the legislative influence on public policy varies not only between countries but, as we will show in the Kenyan context, also over time. This chapter highlights the policymaking linkages between the legislature and executive (including, its bureaucracy) as well as how legislators relate to the citizenry both at the national and sub-national levels of administering policy in Kenya. In so doing, it is organized to discuss what legislative policymaking studies recognize as the three main functions of the legislature: Law-making, Oversight, and Representation as illustrated in Table 5.1.

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Table 5.1  Legislative functions and types in policymaking and how they are performed Function

Principal purpose

Main types

Performance mode

Law-making

Approving coherent policy frames Holding executive accountable Voicing citizen interests

Regulatory and distributive Vertical and horizontal

Deliberative

Direct and indirect

Elective

Oversight

Monitoring

Representation Source: Author

Law-Making The principal purpose of law-making is to create and approve coherent legal frames that facilitate the application of policy. Meant to provide a sense of direction, it sets the parameters for what is legal or illegal; right or wrong. It frames coming policy decisions and composites of their context thereby setting the agenda in public policy development (Dye 2013). This happens foremost through the introduction and referral of bills for deliberation. By enacting laws, the legislature adopts not only policy frames but also policy types, notably regulatory or distributive, and the budgetary resources necessary to put them into practice (Peters 2015). As Goodnow (1914) noted, public administration is loose and uncoordinated. It falls upon the legislature with a greater overview, therefore, to achieve coherence. This overview has also become important in recent years as legislatures have become obliged to contextualize policy components that emanate from international and regional conventions to which the state is a signatory. Finally, the legislature can define policy tools such as asset ownership and expenditure conditions in addition to so-called sunrise or sunset clauses, and what Lowi (1972) has termed “constituent policies” that mandate institutions to either oversee, monitor, or evaluate the implementation of specific policies. In Kenya, as elsewhere in Africa, this has led to the creation of new agencies at various levels, for example, at one end Project Management Committees to oversee inter-agency cooperation

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and, at the other, bodies meant to safeguard the public interest against executive pervasiveness, examples being constitutional commissions, regulatory authorities, and independent offices.1 Oversight Besides limiting tendencies towards hyper-dominion by the executive and other powerful cliques in different spaces of governance using the bodies mentioned earlier, the legislature is expected to scrutinize public expenditures, including the inclination in public bureaucracies to ask for more money than what is really needed to perform their role. Legislative committees shape policies through different oversight tools, such as ombudsmen, commissions of inquiry, audit offices, specialized ad hoc parliamentary committees, public hearings, interpellations that may end with a vote in the chamber, and procedures for questioning ministers, to list the most important (Damgaard 2000, p. 8). Because legislative oversight is driven by political interests, it often becomes inconsistent, controversial, and ambiguous. Even so, the oversight role of the legislature is an important mechanism for guarding the public interest by monitoring policy implementation processes, resource use, and legal compliance by the executive and its bureaucracy. Representation The sovereignty of the legislature lies in the people of the republic whose interests it supposedly serves and protects (Loewenberg 1971). For example, according to Chapter 8 of the Constitution of Kenya (CK2010), “the Parliament manifests the diversity of the nation, represents the will of the 1  The creation of constitutional commissions (e.g. the public protector or ombudsman) and independent offices (i.e. the auditor general and controller of budget), otherwise termed as Chapter 15 institutions in Kenya, have recently characterized institutionalization of democratic (governance) principles in contemporary Africa. For example, the 2010 Constitution of Kenya created 14 Constitutional Commissions and 2 independent offices. In the Republic of South Africa, there are currently six Independent Commissions with expectations of more to be created, for example, an Anti-Corruption Commission. Insofar as policymaking is concerned, these commissions are supposed to create participatory, consultative, transparent, and citizen-oriented policy processes. It is in the interest of the legislature to ensure that such a policy context is created and fostered by the executive as other political institutions and actors.

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people, and exercises their sovereignty”. Although legislators are directly elected in general elections, it is an indirect form of representation necessitated by the fact that not everyone can be directly involved in making policy. Citizens may participate directly in politics by organizing into movements or interest groups to shape opinion and by extension policy. In Anglophone countries, the electoral system is generally based on the notion that plurality is enough to win. Unlike the French system where a majority is needed and a second round, therefore, often becomes necessary, in systems like the one in Kenya, a mix-basket of “majoritarian” and the “first-past-the-post” is enough even if the winner fails to obtain an absolute majority. It needs to be pointed out, however, that the rules of the presidential election differ because they require that the ultimate winner gains a majority vote. The elected legislators represent unique localities. In developed countries, this representation is not only geographic but is mediated by special interests. In developing countries with their less differentiated and stratified economy, local community interests tend to be the prime basis for representation, especially in rural constituencies. This is one reason why in some African parliaments, including Kenya, a certain number of legislators occupy nominated seats. Special seats are provided for representatives of groups such as women, youth, and disabled people. These legislators are elected indirectly by their respective political parties or appointed by the head of state. An interesting innovation in the CK2010 is that under Articles 97 and 98 the voters have the right to recall non-performing legislators. It is therefore assumed that in Kenyan policymaking the citizens “through effective participatory mechanisms and access to public information […] hold relevant public actors responsible through asserting pressure on legislators [vertical accountability]” (Onyango 2020, p. 216). On their part, legislators are supposed to order and channel these pressures to relevant governmental sectors for action, that is, exercise a horizontal form of accountability. As discussed further, exercising horizontal accountability in African countries, however, has its own challenges. How African Legislators Behave Our knowledge of how legislators in African countries behave is still scant. As Barkan (2009) noted in his multi-country study of African legislators, little has been published in mainstream political science journals or those that deal specifically with legislative studies. To begin, mainstream journals

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like the American Political Science Review, Journal of Political Science, and Journal of Politics devote little attention to legislative studies. What is more, journals devoted to legislative studies such as Legislative Studies Quarterly (LSQ) and Journal of Legislative Studies (JLS) have only sparsely published articles on legislatures outside Europe and America. Those that have been published are focused on other regions than Africa. Even journals devoted to the study of democracy—Journal of Democracy (JoD) and Democratization (Dem)—have overlooked the role that legislatures play in bringing about democratic forms of governance in Africa. From their inaugural issues 1989 and 1993, respectively, to 2005, these journals published only one article devoted to legislatures! A follow-up analysis of what was published in these last four journals— LSQ, JLS, JoD, and Dem—during the 2010–2019 period indicates only a minor change in the rate of articles published on legislatures outside the American and European core. The Journal of Legislative Studies shows the most marked growth, and judging from the figures, it looks like it has become a “home” for publications on legislative issues in developing countries, as illustrated in the next table. Legislative Studies Quarterly demonstrates interest in the Latin American legislature, notably those in the Southern Cone, but has published nothing on legislatures and legislators in Asia, Middle East and North Africa, or Sub-Saharan Africa. Journal of Democracy and Democratization has been almost exclusively preoccupied with publishing articles on democratic transition issues that focus on civic activism such as the Arab Spring or its opposite—the resilience of authoritarianism. The latter journal comes closest with one article about how “Big Man” presidents still must build legislative coalitions to get their policy agenda moving forward. This focus can be demonstrated in Table 5.2.

Table 5.2  Articles on legislatures in developing countries, 2010–2019 Journal/region Asia LSQ JLS JoD Dem Source: Author

1 5 0 1

Latin America

Middle East and North Africa

Sub-Saharan Africa

5 6 0 0

0 4 0 0

0 5 0 0

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These figures tend to confirm that the interest in legislatures outside the core areas of Europe and America is quite limited in mainstream legislative studies. It also shows, however, that there is little research being generated on legislatures in Africa and other developing regions. Such research has taken a “back-seat” compared with studies of other political institutions and aspects of the policy process. This does not mean that there has been a total vacuum. Opalo (2019) has written an interesting comparative study of the legislatures in Kenya and Zambia arguing that the former has acquired greater autonomy and influence than the latter which has been micro-managed by the executive. Onyango (2020) has added to the understanding of the current Kenyan reform context by providing evidence of the constraints that exist in what he labels an “unsettled political context” to describe ineffectiveness or the “hanging” nature (i.e. institutionalization deficits) of the devolved system in Kenya. The Kenyan legislature is still developing and acquiring its rightful role in policymaking, but in a wider comparative African context, it emerges as one of the stronger law-making bodies. An intriguing and important finding of the cross-country study of African legislatures that was initiated as follow-up to Barkan’s research is that citizens believe that the most important role of the elected Member of Parliament is to serve his or her constituency providing “club” (community) or private goods that they are unable to get access to on their own (Barkan et al. 2010). Community service may feature in other country contexts, but because it is not as significant as it is in low-income and ethnically divided African countries, it tends to be subsumed under representation. The research findings that now exist on African legislators suggest that in any analysis of legislative policymaking, “constituency service” should be treated as its function.

Legislative Policymaking in Kenya Kenya has now reached the respected age of 125 years. It means that it will soon have been independent longer than it was a colony. It is worth remembering that the country’s first president, Jomo Kenyatta, was born before the British had established their colony in Kenya and he died 1978, fifteen years after the country gained its political independence. In some countries, 125  years would be considered a short historical time but in new states like Kenya, it becomes a long period. A major reason for this difference in perception is that Kenya has gone through the same social

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and political convulsions in a compressed time frame compared to countries in Europe—even America—which could modernize and democratize at a much slower pace. In these circumstances, it is no surprise that Kenya has a twisting history of constitutional development going back to the early days of colonial occupation (Ojwang’ 1990; Kirui and Murkomen 2011). Viewed from the perspective of legislative development, it can be divided into four distinct periods: (1) pre-independence, 1896–1961; (2) independence, 1961–1963; (3) post-independence, 1964–2002; (4) post-­ one-­party dominance, 2002–present. Periods vary in time because of difference in the degree of intensity of change. Thus, the short periods coinciding with the coming of independence entailed a more marked change than anything before or after. The periods since the end of KANU domination of Kenyan politics is also relatively short and it is impossible to anticipate how long it will last. Each period can be characterized by its features and key event. In a comparative perspective, legislative development is best interpreted as a punctuated equilibrium process: most of the time it is gradual and slow, but this relative calm is broken by bursts of change that redefine the political landscape more fundamentally. The discussion that follows is summarized in Table 5.3. Pre-independence (1900s–1950s) As a colonial territory, Kenya’s legislative structures sprouted from the generic structure of British colonial design (Wight 1946). In the early years, there was no autonomous legislative function. Like it was in pre-­ colonial chiefdoms in Africa, the executive, legislative, and judicial functions were performed by a single institution—the Governor’s Office. The 1906 East African Constitution confirmed the creation of a more differentiated system with an Executive Council (ExCo) and a Legislative Council Table 5.3  Periods of legislative development in Kenya since 1896 Period

Pace of change

Main feature

Key event

Pre-independence Independence Post-independence Post-one-party rule

Stabilizing Hectic Slowing down Accelerating

Control Competitive Subjection Liberalization

Kenyatta detention Majimbo constitution One-party rule 2010 Constitution

Source: Author

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(LegCo) with both official and ex-official members. Until 1909, participation was restricted to the white population. A gradual differentiation took place in response to white settler demand for influence over policy. For colonial administrators, the challenge was to retain stability while also responding to the interests of local communities. Integration of settler interests proved to be relatively easy. They constituted a small—though demanding—group and what was even more important at the time, they were largely British in cultural and behavioural outlook. Incorporating representatives of the Indian and African communities was more contested, not only because white settlers opposed their participation in policymaking, but also because the colonial administrators were reluctant to accept it. The first Indian in the LegCo had been appointed in 1909 but the colonial administration was in no hurry to extend the Council’s membership. The LegCo Ordinance of 1919 expanded participation and membership of the Council to 17 with 11 elected and continued dominance of predominantly white members. The 1920 elections were conducted within this context until the 1924 amendment, which further expanded the suffrage to five representatives for Indians and one for Arabs. Eventually, however, the cost of refusing greater representation of these communities was viewed as exceeding the benefits and, in a gradual fashion, the appointment and eventually election to the Legislative Council (LegCo) was secured (Ojwang’ 1990). Parallel development of public administration occurred, initially focused on a strong provincial administration aimed at upholding law and order. A certain degree of democratization began after the Second World War with the introduction of elected District Councils, viewed by the British Government as platforms for local populations to learn how to practice democratic governance. African ambitions were not satisfied with being confined to just political tutelage. In the aftermath of the Second World War, when it dawned on the Colonial Office in London that ignoring the welfare of their colonial subjects was politically costly, there was a growing awareness among educated Africans that they were not treated fairly. The local political process in the colonies, notably in Kenya, was beginning to run ahead of the stabilizing policy process on which the colonial administrators depended. The disjuncture between the political and policy processes culminated in the detention of Jomo Kenyatta, viewed by the British as the leader of the emerging resistance as manifest in the Mau Mau rebellion in the central highlands.

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Independence (1960–1964) The independence period was brief but intensive. It generated the country’s first constitution as an independent nation, the 1963 Majimbo Constitution. It reflected the divisions with which the country embarked on its path to independence. Unlike neighbouring countries such as Tanganyika (now Tanzania), which gained independence without lengthy and complex negotiations, Kenya’s move entailed much more strife and uncertainty. Two factors were especially important. One was the presence of a white settler minority population that saw independence as a threat to its political and economic power. The other was the unevenness with which ethnic groups had become mobilized during the period of decolonization. Nairobi, the political capital, was dominated by the two largest ethnic groups—the Kikuyu and the Luo. Representatives of the many smaller groups feared being dominated by an alliance of powerful figures representing these groups: apart from Kenyatta and his nearest circle, Oginga Odinga—the undisputed leader of the Luos—and Tom Mboya, the influential trade unionist. The smaller ethnic groups started their political party to enhance their chances of getting influence over the transition process. When Kenyans, therefore, went to negotiate their independence at Lancaster House in London, they travelled as two factions. The two big groups carried the flag of the Kenya African National Union (KANU) while the smaller went there in the name of the Kenya African Democratic Union (KADU). It required three separate and lengthy meetings at Lancaster House to reach agreement on a constitution that responded to the interests of the latter by creating a federal system of government (majimbo) with a bicameral legislature. It was contrasted with the centralized control exercised by the colonial government and was portrayed as a mechanism for distributing development goods on a wider basis (Hyden et al. 1970). KADU viewed the outcome in London as a victory, but it turned out to be short-lived. By December 1964, the independence constitution was killed as the new KANU Government with its parliamentary majority abolished its key components, both federalism and bicameralism (Kithinji et al. 2016). Post-independence (1965–2002) The six decades since the nationalist leaders travelled to London to decide the fate of their country can be divided into two phases. The first was

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focused on consolidating power and subject citizens to the full grips of the state. The second, which will be discussed separately further, has in many respects been characterized by the opposite. President Jomo Kenyatta set the tone for the type of governance that developed with KANU in power by using his executive power to curtail the role of the legislature. He strengthened the bureaucracy and created what is best labelled as an Imperial Presidency. John Nellis illustrates this absolute dominance by the executive over the legislature and other state institutions in the 1970s by citing Jean-Marie Seroney, the then legislator for Tinderet, who lamented that “a type of ‘silent coup’ had taken place and that Government (meaning the Cabinet and the very top political leaders) had ‘silently taken the powers of the National Assembly and given them to the civil service’”. Seroney termed the National Assembly a “rubber stamp authority” (Nellis 1971, p. 389). To weaken the power of the legislature, President Kenyatta banned rival political parties and co-opted, exiled, or even killed individual legislators who were either actual or perceived threats to the executive’s dominance. Based on Section 58 of the then constitution, the executive could dissolve the parliament at will. The legislature could not really play its oversight or representative role on behalf of the citizenry. Upon Kenyatta’s death, he was succeeded by Daniel arap Moi, his vice-president, in 1978. The transition was contested, and it is clear, that Moi feared many of his rivals within the leading KANU circles. His time in power, therefore, began much like the Kenyatta era had started: consolidation of power and intimidation of rivals to the point of the violent removal of those he feared most. Things began to change in the 1990s when Kenya, like other countries still being under authoritarian rule, was affected by the global Third Wave of Democratization. The one-­ party rule was challenged and in the 2002 elections, the Moi era came to an end. Post One-Party (2002–Present) One of the last things that President Moi did before stepping down was to appoint the Constitution of Kenya Review Commission (CKRC), chaired by Professor Yash Ghai. As a farewell gift to the people of Kenya, it is not clear whether it was meant as a blessing or curse. The President harboured doubts whether Kenya with its ethnic divisions could flourish in a system other than one dominated by a single party. Thus, it was a heavy burden that fell on the shoulders of the CKRC. Pressures mounted to reduce the

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power of the presidency and delegate authority to locally elected government entities. It had to respond to the centrifugal forces in politics without choking pluralism and popular participation (Ghai and Cottrell-Ghai 2013). How could the constitution be turned into a framework for a new type of governance based on the rule of law? These issues took time to sort out. The legal expertise worked closely with politicians to find the answers. They gradually emerged at meetings held at the Bomas of Kenya, a place usually devoted to featuring traditional Kenyan dance shows. From a legislative politics perspective, the key issue was how citizens could be empowered while also develop a greater sense of unity. Although the spectre of majimbo arose again, there was also a strong aversion to reinventing a federalist structure. It would reinforce a focus on politics at the centre: every group would want to have a slice of the national pie. It was mandatory, therefore, to go further and design a system that would localize political competition through the creation of separation of powers between locally elected county governors, on the one hand, and elected county assemblies, on the other, while also linking county interest to the centre through a second chamber made up of locally elected senators. This system is an ingenious compromise design that is quite suitable for multi-ethnic societies. Federalism relies on large-scale political entities that potentially have the power to develop irredentism and a will to secede, as has been evident in Africa’s federal states—Ethiopia, Nigeria, and Sudan. The counties are too small to pose a threat to national unity in Kenya. By being small, the governance structures are at a closer range to ordinary citizens. To be sure, power could be devolved even further to smaller administrative units and there are pressures to do so in Kenya in the early 2020s. If Kenyan politicians, however, learn to live with the new system, it is democratic enough to facilitate a more participatory way of conducting legislative and other functions. The 2010 Constitution, therefore, offers promise to Kenyans and it falls on the shoulders of their political leaders at different levels to embrace its ethic and principles. In a review of the new constitution, Kirui and Murkomen (2011, p. 13) emphasize that it has radically reversed the role of the legislature in making public policy. According to them, this applies to four key powers that limited the autonomy of the Kenyan parliament in the past: (1) the powers of the president to prorogue the parliament; (2) his power to dissolve it; (3) the very strict conditions for impeaching the president, and (4) his power to refuse to assent to bills. Thus, unlike before, the parliament no longer needs to agree with the president on the contents of a bill. And

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such a bill can become law even if the president desists from assenting to its amendments. This is an institutional innovation that makes the Kenyan parliament relatively more powerful than legislative authorities in Uganda, Rwanda, Burundi, and Tanzania.

Legislative Development: A Status Report CK2010 is a milestone in constitutional and legislative development in Kenya. Although the process never stands completely, still the new constitution is significant enough to warrant a pause to reflect on where we are and what still needs to be addressed. To begin, what does it mean from a legislative point-of-view to be developed? Using a house-building metaphor, the answer is: when it is ready-built, and the occupants are mainly concerned about interior design and furnishing. Such is the case with legislatures in Europe and America. They stand on firm ground and are strong enough to withstand the wear and tear that strong winds and cold temperatures may cause. Legislators can devote their time to the subject matter at hand. Whether it is making laws, serving as watchdogs, or representing citizens, they do it typically on a routine basis. Formal rules may be amended but the most important thing is that they are always obeyed. A reading of the records, for example, the British Hansards, of what transpires in the chambers, confirm that although technicalities may come up in the form a “point of order”, the debates focus on policy issues. In the language of Kingdon (1984), the multiple streams of problems, policy options and politics tend to come together coherently and constructively. Such are the fruits of institutionalized practices. It would be presumptive to assume that this would be the case in a legislature like the one in Kenya. It remains at the stage of being institutionalized. The CK2010 notwithstanding, the house is still under construction. The cement is wet and inside, actors are busy finding their way. With this scenario in mind, what are the most important outstanding issues, what are the examples of these issues, and what might be the solutions? The answers to these questions will be discussed ahead and are summarized in Table 5.4. Law-Making Is the Kenyan system primarily presidential or parliamentary? In trying to combine features of both it does not always do the right thing. Ambiguity

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Table 5.4  State of legislative development in Kenya Function

Current status

Law-making

Politics, problems Cabinet of appointed policy not aligned technocrats Executive dominance Lack of human and financial capacity Participation deficit MPs mainly interested in “their pockets” Distribution by Constituency patronage Development Funds

Oversight Representation Constituency service

Key illustration

Possible answer Cabinet drawn from MPs More experience and political will More lay input in policy committees Making funds more autonomous

Source: Author

prevails. When it comes to identifying problems and turning them into policy, the political aspect usually trumps expertise. The latter is important but should be subordinated to political decisions. The CK2010 changed the system that existed since independence whereby there was an unclear line between politics and administration or between ministers and civil servants. In the current new set-up, cabinet members are no longer politically appointed ministers but instead expertise-recruited secretaries to the President. This is one case where the cement is still wet, that is, a still unsettled issue. Many believe, citing, for example, Müller-Rommel and Blondel (1988), that the new arrangement weakens the link between executive and legislature, thereby reducing the political accountability of public policymakers. As McDonnell and Valbruzzi (2014) contend, in this kind of system, “[a]ll major governmental decisions are not made by elected party officials. […] Policy is not decided within parties which then act cohesively to enact it. […] The highest officials (ministers, prime ministers) are not recruited through party” (p. 656). This situation is easily becoming pronounced in Kenya where political parties are weak, and politics is personalized. Cabinet secretaries are typically inexperienced in public policy processes and often overlook consultative policy development mechanisms in favour of their own “mini-cabinets”, made up of advisors chosen from among trusted friends, some of whom may be incompetent. This system also tends to weaken stakeholder-consultation as evident, for example, in the 2020 stand-off between the Cabinet Secretary of Education and the Kenya National Union of Teachers on the adoption and implementation of the Competent Based Curriculum in primary and secondary schools (see The

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Star 17 May 2019). Yet another case would be the disputes over control of budget matters between the National Assembly’s Budget Office and Budget and Appropriation Committee, on the one hand, and the Treasury, on the other. As these examples show, the linkages between legislative authority, policy content, and policy problem in both national and sub-­ national policymaking processes are not aligned and the mechanisms to correct the situation are weak. It is in this context that calls are made to bring back the old formula for consideration on the legislative development agenda. Oversight The legislative oversight function, whether at the national or sub-national level, is still not well understood by most legislators. It is probably the most neglected and misinterpreted of all the functions of legislative policymaking in Kenya. It certainly does not appear to be their priority, one reason being that they know that “the pork” will come their way largely thanks to good relations with the executive. Because of their self-interest, in combination with a poor understanding of technical policy issues, legislators often enter in collusive relations with the executive to grow rather than control budget items for the bureaucracy, as pointed out by the country’s ombudsman institution—the Commission for Administrative Justice (CAJ 2014). Legislative oversight, therefore, is rarely effective. It becomes especially apparent at the county level where Members of County Assemblies (MCAs) perform their oversight role in ways that only exacerbate the executive-legislature conflict (Onyango 2020). While Members of County Assemblies (MCAs) generally seem more independent than their counterparts at the national level, they are less skilled and experienced and tend to overstep their mandate. What is meant to be oversight turns into conflicts that frustrate effective governance. Attempts to impeach county governors illustrate these conflicts between local executives and legislators (Onyango 2020), including several cases of unsuccessful attempts to impeach governors. Indeed, by the end of 2019, there were a total of five attempts to impeach different county governors. Some were only shielded by the Senate while others survived on court orders (Nyamori 30 January 2020). At the same time, MCAs have also accused County Executives of frustrating their oversight functions (Seif 2 January 2020). Thus, the relations between the executive and legislative branches of government at both national and county level continue to be contested

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in ways that undermine good governance. This imbalance in power relations between the executive and the legislature cannot be changed overnight. It will require strong-minded legislators with experience and political will to turn things around. The MPs that have left a legacy behind as great legislators are the Seroneys of this world displaying the courage to speak out on behalf of the legislative body against executive intrusion. To enhance its own status and power, the current legislature needs more members of such calibre. Representation Citizen participation in public policy processes is extensively stipulated in several clauses and paragraphs of the CK2010. It is its central mandate in legislative policymaking. This Tocquevillian spirit is also reflected in follow-­up legislation like the Public Finance Management Act of 2012 and the County Government Act of the same year. The issue now is how this spirit is being translated into practice. In already developed societies using democratic governance practices, this typically happens through organized stakeholder interests (Biljohn and Lues 2020). Such stakeholder groups are still relatively weak in Kenya although urban-based trade unions may exercise their clout to demand policy action. More common, however, is the informal clientelist way by which needs expressed by local communities are adopted by local political leaders. This pattern of representing people becomes prevalent because individual citizens share the same local interest and there is no incentive to engage in civic participation when the good can be obtained more expeditiously using an informal clientelist channel. Simply said, they become free riders rather than active citizens working to influence policy through their legislators. Strengthening popular participation, therefore, is not only a structural but also a behavioural issue because it relates further to definitions or interpretations of citizenship by Kenyans and how to assert it in the public policy process. There is scope for lay participation in parliamentary sub-committees, but it continues to be limited to a single or very few voices, especially, the regime loyalists. Furthermore, the committees have not taken very seriously the task of communicating with the public, although, at the time of writing this chapter, a bill is being prepared to strengthen the communication requirements with the public via various media. There are also plans to make committees more involved in educating the public on issues with which they are concerned.

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Perhaps the most serious constraint to more effective representation is often the legislator him/herself. S/he participates in a sham aimed at making it more profitable to sit in the parliament. Thus, legislators create more committee memberships than necessary merely to earn the daily allowances for attending their meetings. For example, until recently the Public Accounts Committee in the National Assembly had 51 instead of the standard number of 11 members. Sometimes, these allowances are illegally paid out, that is, when the legislator is not in attendance. In this context, where earning money takes precedence over public service, the ethics of legislative representation is lost. The practice undermines the confidence citizens have in their representatives and contributes to a cynical view of politics and politicians. It becomes extra hard to realize the constitutional promise of civic participation. This is likely to change only if the larger scope is made for lay input on these committees, whether this involves representatives of organized interests or trusted individuals with a deep sense of the public service. Only then may problem, policy, and politics begin to flow in streams that are mutually reinforcing. Constituency Services One of the special features of African legislators is the importance they attach to serving their constituents. Unlike the work in the legislature which requires cooperation and coordination to produce results, a constituency service function is an individual act. It is not difficult to see that in countries with homogenous rural populations, the task of providing goods to the constituency easily becomes a priority. Being elected or re-­ elected is very much dependent on satisfactorily performing the constituency service function. In Kenya, much of it has hinged on access to financial resources. During the first Kenyatta presidency, money for local development projects was raised through Harambee projects supported by voluntary local labour and money donated by wealthy individuals from the community. During the Moi years in power, the Harambee institution degenerated into a political patronage event where leading politicians gave generously and were seen shining in the glory of their donation. Politically speaking, it became the foundation for President Moi’s patronage network. When Mwai Kibaki was elected president in 2002, it became necessary to break up this network. It led to the establishment of the 2003 Constituency Development Fund (CDF) Act meant to ensure that 2.5 per cent of the ordinary national revenue would be allocated to these funds.

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In addition to devolving finances, the CDFs were also viewed by legislators like Martin Shikuku and Koigi Wamwere at the time as a means of restricting the dominance of the executive. Much of legislative politics since then has centred on these funds. After 2010 when a true devolution of power to the counties took place, the funds have become a source of controversy. Governors now have access to larger funds than the members elected to the National Assembly. A decision by the Assembly in 2014 to increase the amount paid into the CDFs was widely criticized as an unnecessary duplication of financial devolution, especially in the light of continued misuse of money. The CDFs had been established to break up patronage networks, but they had not succeeded in doing so. New patronage networks had evolved around the issue of who should get support and for what purpose (Tsubura 2013). The 2014 Amendment brought a modification to the decision-making structure by ensuring that members of the board were elected to represent the wards covered by the constituency. This is generally viewed as an improvement, but it does not address the issue of patronage in full. Financial accountability is not going to be secured with fund management in the hands of politicians only. Reducing patronage and other forms of misuse of public funds is better achieved by increasing lay participation in the decision-making. Trusted individuals nominated and elected by civil society representatives would be an illustration of how to proceed.

Conclusion When Barkan conducted his comparative study of legislative development in six African countries—Benin, Ghana, Kenya, Nigeria, South African, and Uganda—in the early 2000s, he assessed that since independence Kenya demonstrated the most impressive progress. Together with his local collaborator in Kenya, Fred Matiangi, they pointed to how a wellled and motivated group of political leaders could affect change in a positive direction thereby reducing the executive dominance that had been institutionalized during the Moi presidency (Barkan and Matiangi 2009). Executive dominance has not completely disappeared. It has returned to the national political agenda in the wake of the new constitutional order which has raised expectations about how far the legislature can counter executive dominance. This chapter has demonstrated that despite its progress over the years, its core functions are still to be fully developed. Much of this deficit comes from within the ranks of legislators where

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many are satisfied with just boosting their income through “sitting allowances”. They have to learn how to act more effectively as a collective entity and strike a better balance between the individual task of serving their constituency—however important it may be to each one of them— and the collective action challenges they face in the legislature when making laws, watching the executive, and voicing the interests of their electorate. Many Kenyans are waiting for the leadership to emerge that can take legislative development in the country to the next level.

References Barkan, Joel D. 2009. Legislative Power in Emerging African Democracies. Boulder, CO: Lynne Rienner Publishers. Barkan, Joel D., and Fred Matiangi. 2009. Kenya’s Tortuous Path to Successful Legislative Development. In Legislative Power in Emerging African Democracies, ed. J.D. Barkan, 33–72. Boulder, CO: Lynne Rienner Publishers. Barkan, Joel D., Robert Mattes, Shaheen Mozaffar, and Kimberly Smiddy. 2010. The African Legislatures Project: First Findings. CSSR Working Paper No 277. Cape Town: Centre for Social Science Research, University of Cape Town. Biljohn, Mareve I.M., and Lyzette Lues. 2020. Citizen Participation, Social Innovation, and the Governance of Local Government Service Delivery: Findings from South Africa. International Journal of Public Administration 43 (3): 229–241. CAJ. 2014. Annual Report 2014. Nairobi: Commission for Administrative Justice. Damgaard, Erik. 2000. Representation, Delegation, and Parliamentary Control. Paper Prepared for the Workshop on “Parliamentary control of the executive”, ECPR Joint Sessions of Workshops, Copenhagen, April 14–19, 2000. Dye, Thomas R. 2013. Understanding Public Policy. 14th ed. London: Pearson Education. Ghai, Yash Pal, and Jill Cottrell-Ghai. 2013. Ethnicity, Nationhood and Pluralism: Kenyan Perspectives. Nairobi: Katiba Institute. Goodnow, Frank J. 1914. Politics and Administration: A Study in Government. New Brunswick: Transaction Publishers. Hyden, Goran, Robert H. Jackson, and John J. Okumu, eds. 1970. Development Administration: The Kenyan Experience. Nairobi: Oxford University Press. Kingdon, John W. 1984. Agendas, Alternatives and Public Policies. New  York: Little Brown. Kirui, Kipkemoi arap, and Kipchumba Murkomen. 2011. Challenges of Nationhood: Identities, Citizenship and Belonging Under Kenya’s New Constitution. SID Constitution Working Paper Series No 10. Nairobi: Society for International Development.

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Kithinji, Michael M., Mickie M. Koster, and Jerono P. Rotich, eds. 2016. Kenya After 50: Reconfiguring Historical, Political, and Policy Milestones. Basingstoke, UK: Palgrave Macmillan. Loewenberg, Gerhard. 1971. Modern Parliaments: Change Or Decline? New York: Aldine Atherton. Lowi, Theodore J. 1972. Four Systems of Policy, Politics, and Choice. Public Administration Review 32 (4): 298–310. McDonnell, Duncan, and Marco Valbruzzi. 2014. Defining and Classifying Technocrat-Led and Technocratic Governments. European Journal of Political Research 53 (4): 654–671. Müller-Rommel, Ferdinand, and Jean Blondel, eds. 1988. Cabinets in Western Europe. St. Martin’s Press. Nellis, John R. 1971. Is the Kenyan Bureaucracy Developmental? Political Considerations in Development Administration. African Studies Review 14 (3): 389–401. Nyamori, Moses. 2020, January 30. Five Governors Have Survived MCAs’ Impeachment Motions. The Standard. https://www.standardmedia.co.ke/ nairobi/article/2001358467/how-­governors-­have-­survived-­impeachment-­ motions. Accessed 19 February 2020. Ojwang’, Jackton B. 1990. Constitutional Development in Kenya: Institutional Adaptation and Social Change. Nairobi: ACTS Press. Onyango, Gedion. 2020. Legislative Oversight and Policy-Reforms in ‘Unsettled’ Political Contexts of Public Administration. International Journal of Public Administration 43 (3): 213–228. Opalo, Ken O. 2019. Legislative Development in Africa: Politics and Postcolonial Legacies. Cambridge: Cambridge University Press. Oppenheimer, Bruce I. 1983. How Legislatures Shape Policy and Budgets. Legislative Studies Quarterly 7: 551–597. Peters, B. Guy. 2015. Policy Capacity in Public Administration. Policy and Society 34 (34): 219–228. Seif, Mbaruku. 2020, January 2. Mombasa MCAs Claim Frustrations by Executive. https://www.thestar.co.ke/counties/coast/2020-­01-­02-­mombasa-­mcas-­ claim-­frustrations-­by-­executive/. Accessed 19 February 2020. The Star. 2019, May 17. New Curriculum in Limbo: KNUT, Magoha War Threatens New Syllabus. https://www.the-­star.co.ke/news/2019-­05-­17-­ knut-­magoha-­war-­threatens-­new-­syllabus/. Accessed 21 February 2020. Tsubura, Machiko. 2013. The Politics of Constituency Development Funds (CDFs) in Comparative Perspective. Paper Presented at the 2013 Annual Meeting of the American Political Science Association, Chicago. Wight, Martin. 1946. The Development of the Legislative Council, 1606–1945. Vol. 1. London: Faber & Faber Ltd.

CHAPTER 6

Political Parties and Public Policymaking Solomon Owuoche

Introduction Political parties in Africa have a chequered history. They played a primary role in the process of decolonization taking advantage of the brief liberal span in the colonial rule after the Second World War. Although the struggle for independence tended to generate a dominant movement, multi-­ party politics was constitutionalized and several countries, for example, Ghana, Kenya, Nigeria, and Uganda, developed functioning competitive party systems as nationalist leaders took over the power from their colonial masters. This, however, was to change quite soon after independence in many African countries. In some places, military officers carried out coups d’état, prohibiting civilian competitive politics. In others, leaders of the dominant nationalist party put an end to political competition by either co-opting the opposition, as happened in Kenya, or banning the opposition outright. In Tanzania, for instance, the ruling party went as far as constitutionalizing one-party rule, a measure that some other countries

S. Owuoche (*) Department of Political Science and Public Administration, University of Nairobi, Nairobi, Kenya e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 G. Onyango, G. Hyden (eds.), Governing Kenya, https://doi.org/10.1007/978-3-030-61784-4_6

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adopted later. This type of regime lasted a few decades but became widely contested in the early 1990s as the “third wave” of democratization brought more open regimes to countries across the world, including those in Africa. Since then, there has been a continued though somewhat uneven growth of support for multi-party politics (Mattes and Bratton 2016). Despite dealing with some of the most complex socio-political and economic challenges, mainly, corruption, ethnic conflicts, and poverty, countries in sub-Saharan Africa now have in place relatively open political systems and governance spaces characterized by competitive party politics and civic engagements to influence government actions. It is with this mixed legacy in mind that this chapter will examine the role that African political parties play in policy processes. It sets the stage by highlighting what we know of political parties and how they have arisen in other regions of the world, notably Europe, focusing on how in those countries, they tend to be based on economic interests manifest in the economic production process while those in Africa are grounded in consumption communities, that is, a political economy in which shaping policy is less important than holding power to control the allocation of benefits to these communities. Following this broader analysis of political parties and party systems in Africa, the rest of the chapter focuses on Kenya tracing the degree of influence political parties have on policy, using three case studies as the basis for assessing their performance and analysing more closely the role of the Office of the Political Party Registrar (OPPR) in managing the country’s party system. In the light of a rather disappointing assessment, the chapter ends with a discussion of what might be done to strengthen and improve the role of Kenyan political parties.

Linking Political Parties and Public Policy From the times of Plato and Aristotle until the late eighteenth century, government action, or what would during the 1950s be termed public policy, was conventionally the preserve of a few with access to and control of state power. As documented by Woodrow Wilson (1887), government decisions and actions were traditionally a top-down process that served the interests of the royals and those in power. This exclusivist and elitist approach to public policy grounded in the patriarchal nature of society disenfranchised a big percentage of the population, notably women. This form of “limited politics” persisted for hundreds of years until the 1789 French Revolution. Consequently, the period 1789–1794 represented a

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paradigm shift in continental Europe and changed the “public policy of exclusion” to “public policy of inclusion”. What followed was a progressive albeit uneasy take-over of governing by the people through their representatives affiliated to parties, ultimately leading to party politics being at the centre stage of governing, first, in Europe and America and later expanding through disparate forces to the rest of the world. To fully understand and appreciate the evolution of political parties in Africa, it is important to place this process in its comparative perspective. The conventional definition of political party refers to its voluntary nature. Political parties are formed when people come together because they share an ideology and a set of common values. By being representative of economic, social, and political interests, they produce leaders who through democratic elections form the machinery of government (Salih and Nordlund 2007, pp. 19–20). As instruments of collective action, political parties create the political elite that competes for power and influence over policy (Weiner 1967, pp.  1–2). As intermediaries between citizens and government, they aggregate interests into the policy (Almond and Coleman 1960). As such, they cut across the key governmental processes: the electoral, legislative, executive, and administrative. Political parties are different from civil society organizations or social movements. The latter articulate opinions based on the interests they represent. Political parties, on their side, aggregate multiple opinions into a single party platform. According to Goodnow (1900), as democracies evolved in North America and Europe towards the end of the nineteenth century, the representative role of party politics had become an important composite of a functioning government. Almost a century later, another influential scholar labelled political parties “endemic to democracy, an unavoidable part of democracy” (Stokes 1999, p. 245). Today, party politics animates democracy in Africa as much as it does in Europe, as Sartori (1976) noted already almost five decades ago. Although democracy more recently has suffered a backlash in several countries, it is still the dominant discourse, defending multi-­ partyism being one of the key components of this discourse. The recent tendency in the field of comparative politics to generate indices to measure various dimensions of governance has had the effect of focusing on what Africa has in common with other regions of the world rather than how it differs. While this type of scholarship has “mainstreamed” Africa within the political science discipline, it has also had the effect of assuming that the region fits into universal theories without qualification. The costs of omitting the features of governance that are more

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pronounced in Africa than elsewhere becomes immediately obvious in any attempt to analyse the role that political parties play in policy processes. A comparison with the history of party evolution is instructive for understanding not only why African political parties are different but also why their performance has been generally considered under par. Political Parties: Representing Whom and How? Institutions matter but they do so in different ways. Their historical origin is often a lead to understanding how they have become what they are. This insight is important for understanding the deviant nature of political parties in Africa. The conventional analysis of parties draws on Western experience. One of its key aspects is that the modernization of society occurred before political parties and party systems evolved. This means that political parties came to represent economic interests that had developed as countries industrialized and became more urban. The various political parties that evolved represented, for example, capital owners, professional classes, and workers (Lipset and Rokkan 1967). They agreed to function within a parliamentary system, thereby rejecting revolution in favour of compromise and peaceful negotiation. This, in turn, generated policy outcomes that were “win-win” or positive-sum games. The important point that the two authors make is that parties reflect social cleavages that existed at the time of their coming into existence—in the European cases in the early 1900s after the countries had developed into economic systems in which cleavages were class-based. These cleavages were manifest in ideologies with quite some rough edges; still, leaders realized that working together and seeking sub-optimal outcomes were more beneficial than the costs to all from overturning the parliamentary system. The roots of African political parties are quite different. The oldest parties date back to the independence struggle but only a few of those “first-­ generation” parties, for example, the ruling party in Tanzania, CCM, still exist.1 Contrary to the European case, political parties in Africa have been generally short-lived. Even more important, these parties came about before countries had modernized and thus, they reflect social cleavages that reflect “natural societies”, that is, those where the state is not yet a 1  CCM stands for Chama cha Mapinduzi (Revolutionary Party). It is a straight continuation of the party that led the country to independence—Tanganyika African National Union (TANU).

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dominant actor shaping the historic course of the country. The state in these cases lends itself to competition among communities that are not based in a modern economy and its production relations but rather participate in politics to obtain the largest possible share of the national economic pie regardless of its consequences for public finance and the economy at large. These parties are not anchored in ideology or specific policy positions but tend to justify their existence by borrowing bits and pieces of global development agendas. Wherever political parties in the early days of independence relied on ideologies borrowed from the European experience, notably socialist or communist versions, they were soon rejected or abandoned in favour of a nationalist platform aimed at unifying the new nation and accelerating the country’s development. The theory of pluralism on which the mainstream literature on policy analysis and implementation is based goes only so far when it comes to analysing the role of political parties (Chilcote 1994). Pluralism in Europe works because the state is an outgrowth of society and reflects its composition at the time modern political parties came into existence. In those countries, state power determines policy outcomes but because it is not in question—it is generally considered a legitimate institution—the state (the ruling elite) can afford competition among multiple parties. The theory of pluralism runs into difficulties in African countries because predominant social cleavages tend to undermine rather than enhance state power. The notion of pluralism is difficult to align with state power as it is constituted in Africa’s largely pre-industrialized and still modernizing societies. The result is that the state easily becomes unwieldy and acts in discretionary manners that call into question the legitimacy of those in power. The ruling elite in African countries lacks the confidence that allows them to treat political opponents in an equal and respectful manner. In short, political parties in Africa lack many of the features and qualities that make them influential actors in policymaking. Apart from lacking party manifestos that highlight policy issues, priorities, and strategies, they are not hierarchically and centrally organized with respect for rules that allow member influence at highest possible level, nor do they enjoy financial support for which the leadership is held accountable (Ball and Peters 2005).

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Political Parties and Public Administration Although political parties are private institutions concerned primarily with organizing supporters and expressing their views, they are also able to extend their influence into the public bureaucracy or state administration. As one of the pioneers in the field of policy studies, Goodnow (1900), noted, the influence political parties sometimes have is not confined to the policy processes but also to bureaucratic institutions responsible for implementing policies. He laid the ground for the study of bureaucratic politics, a sub-field that has grown in significance, especially in the United States. Goodnow seems to conclude that two factors are important for assessing the influence political parties may have inside bureaucracies. The first is that the party is effective; the second is the nature of the government system. Comparing Britain with other countries, he believed that political parties differed in terms of their effectiveness in the policy process. Goodnow (1900, pp.  140–42) observed that those countries like Britain with a strong party government, “that is, a system which requires the government to be administered by ministers who possess the confidence of the majority of the legislature”, tend to have more efficient administration and harmonious ministerial policies that are also more achievable than in countries such as France and Italy where political parties are highly fragmented and local. There, the state administration is highly impaired, and the harmony of ministerial policies is difficult, if not impossible to achieve. The executive is not able to rely on ministers from its own party only but must recruit members to the cabinet from other parties to ascertain a majority in the legislature. These parties have their own political following, which means that public policies must be worked out as compromises in return for political support (ibid., pp.  142–3). Goodnow’s typological discussions between the nature of the government authority, the political parties, and possible policy implications, in many ways, put into context parameters that can be used to discern the relationship between political parties and public policy processes in African countries like Kenya. Thus, the effectiveness of political parties in influencing bureaucratic policymaking depends on the extent to which they can build consensus on critical national issues by avoiding partisan polarization, act as a bridge between citizens and rulers, and play an oversight role so that the policymakers and implementers abstain from abusing their authority. As the discussion below further highlights, the relationship between political parties and

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policymaking in the African context has its own particularities. It begins with a broader overview of the party landscape in Africa with special reference to four East African nations: Burundi, Rwanda, Tanzania, and Uganda.

Political Parties in Africa: An Overview Tanzania is quite unique among African countries as the only place where the nationalist movement that took over from the colonial administration is still in power six decades later. Angola, Mozambique, Namibia, South Africa, and Zimbabwe can claim to have the same uninterrupted trajectory since the nationalist movement entered government, but their time span is only half of that of Tanzania. What these countries have in common with Tanzania, however, is the power of the nationalist movement to successfully hold the nation together—albeit not without violence as the cases of Angola and Mozambique illustrate. Reviewing the situation in countries across the continent shows that a majority has gone through changes in the party system, in some places in a peaceful manner, in others with turbulence. A look at how political parties in Africa have been treated in the literature is a useful starting point for understanding their current role in policymaking. Although there were a few studies that tried to catalogue the various types of organizations and groups that contributed to the nationalist cause, for example, Hodgkin (1956) and Coleman (1958), the first real attempt to classify the emerging political parties in Africa’s new nations took place only later. The most influential of these was the edited volume on political parties and national integration (Coleman and Rosberg 1964). The editors make a distinction between two tendencies that were emerging in the development of political parties immediately after independence. One was the revolutionary-centralizing type, the other the pragmatic-pluralistic type. The former was characterized by a strongly articulated ideology, hierarchic organization and mass mobilization of members and followers. The latter, on the other hand, displayed no such distinct features. They were held together more by loyalty to leading personalities rather than ideas, had a much looser organization, and paid more attention to intra-elite transactions than strengthening popular participation. They also approached the challenge of national integration differently. The former was concerned foremost with political integration, that is, bridging the gap between the elite and the masses while the latter

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was preoccupied with the issue of territorial integration, that is, strengthening national unity. The legacy of this typology has lingered in the literature, although over the years it has been variously refined. Sebastian Elisher (2013) argues that African political parties display more variation than had been assumed earlier. He distinguishes between five different types: (1) the mono-ethnic party, (2) the multi-ethnic alliance party, (3) the catch-all ethnic party, (4) the personalistic party, and (5) the programmatic party. Two observations are pertinent at this point. The first is that the broader parameters for classifying the parties have remained the same: ideology versus ethnicity, personality versus organization. The second is that political parties in Africa have not been very stable and institutionalized (although exceptions like Tanzania do exist) leaving specific conceptualizations with limited long-­ term value. Another observation is that parties are neither merely ethnic nor programmatic. As Bratton and Kimenyi (2008) noted concerning Kenya: people do not identify themselves in ethnic terms, but do so in relation to others, meaning that they vote on an ethnic basis largely in defence, but they do also consider crucial policy issues such as living standards and corruption. Four years later Bratton et al. (2012) could confirm that a similar orientation is found in other African countries. Voter intentions are characterized by cross-cutting considerations. This mix of intentions, however, does not translate into confidence in political parties. Data from later Afrobarometer surveys indicate that while support for democracy has gone up in many African countries, trust in political parties to serve as guardians and promoters of democratic forms of governance has been going down in several countries, including notably South Africa, Botswana, Mauritius, Ethiopia, and Uganda (Mattes and Bratton 2016). This decline in trust in political parties tends to be related to their failure to function inclusively and democratically—often remaining controlled by a single leader or being largely composed of members from one or a few ethnic communities—but also to their inability to deliver on their policy promises. This shows up in a closer examination of the role of political parties in policy processes in four East African countries: Burundi, Rwanda, Tanzania, and Uganda.

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Parties and Public Policies in East Africa The four counties are indicative of the problems African countries face in finding a balance between national unity and political pluralism. Burundi and Rwanda are examples of countries with a common indigenous language, culture, and history, yet are divided—not by tribe but by caste. The two are ancient feudal kingdoms that have been able to modernize on their own terms (Lemarchand 1970). In this respect, they are quite different from Tanzania and Uganda where the colonial power has determined national integration and development more directly, albeit in varying degree. The latter is an artificial creation made up of several kingdoms and acephalous societies that have little in common. Because the British deemed Uganda to be a resource-rich territory—and were impressed by the sophistication and culture of the leading kingdom—Buganda—they were ready to invest what it took to hold on to it without destroying the indigenous structures. Uganda, hence, became a prime example of the British system of “indirect rule” (Fallers 1966). This legacy, according to Mamdani (1996), has prevailed to this day by holding back the evolution of political attitudes from being subject- to citizen-oriented, that is, a change from being merely subservient to authority to becoming an active civic-oriented person. Tanzania (or Tanganyika as it was called until 1964 when it joined Zanzibar in a united republic) was an even more heterogeneous place, made up of over a hundred different ethnic groups with their own history and culture. The colonial powers, initially Germany and later the British under a League of Nations mandate, did little to assist modernization and the territory eventually was integrated more by trade than by decree, a process that made Swahili gradually emerge as a more significant integration instrument than the English language (Listowel 1965). What the four have in common is that regardless of social formation and history, their political parties have been more preoccupied with the political challenges of national unification than with taking independent positions of specific development policy issues. Their party systems have shifted between one-party rule and multi-party competition but apart from Tanzania, party politics has generally been contentious to the point of threatening national unity. Much of Tanzania’s deviation from the others has to do with the way the nationalist movement came to power at independence without any other party being represented in the legislature. Even after multi-party politics was returned after a three-decade of

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one-party rule in the early 1990s, no opposition party has been able to challenge the incumbent ruling party.

Parties and Policymaking in Kenya Kenya has much in common with the four countries mentioned earlier. It has vacillated between one-party rule and multi-party politics. If there is a difference, it may be that the colonial imprint was much more direct in Kenya. The colonial administration not only served the white settler community that inhabited the fertile Rift Valley areas but also intervened more forcefully to change the lives and livelihoods of the indigenous population. To control the change process, the British applied the principle of a ruling by division, setting the ethnic communities against each other. The history of party development in Kenya, therefore, begins with the many ethnic and district associations serving as champions of their own interest. During the late years of colonialism, Kenyans witnessed the establishment of several district associations such as the Nairobi District Congress (NDC), Mombasa African Democratic Union (MADU), African District Association (ADA), Abagusii Association (AA), Taita African Democratic Union (TADU), Nakuru African Progressive Union (NAPU), Abaluhya Peoples’ Association, (APA) and Nyanza North African Congress (NNAC), among others (Jonyo and Owuoche 2004). The divide-and-­ rule policy guaranteed that the locals spent more time fighting one another along factional and ethnic lines than on promoting national interest. When political parties were eventually permitted, these associations were adopted into organizations many of which continued to have an ethnic bias (Mboya 1970). Among those registered in 1962 were the Akamba Peoples’ Party (APP), Kenyan Asian Party (KAP), Maasai United Front Alliance (MUFA), Kalenjin Alliance (KA), and Somalia National Association (SNA), among others. Even KANU, the ruling party, was largely viewed as representative of dominant Kikuyu interests. It is this perceived Kikuyu domination of the “smaller tribes” that led to the formation of KADU as a counter-­ strategy (Tordoff 1997). Attempts by the ruling elite to “nationalize or ideologize” parties did not go far enough to make things better. The periods that followed revealed noxious ethnic tensions and a fragmented ruling elite as demonstrated by the Kenyatta-Odinga rivalry, the top leaders of the party, the former being viewed as the patron of the Kikuyu people, the latter serving in the same capacity for the Luo people (Oyugi 1997). The ethnic foundations of political parties and a state monopoly of politics

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mean that they were inadequately funded, attached to personalities, and poorly institutionalized. Consequently, the Political Parties Act (2011) was enacted to establish regulation, institutionalization, and funding of political parties so that they can engage in competitive politics and governance processes with greater strength and confidence. Yet, a decade later, there is little evidence that practices have changed in the desired direction. Ethnicity continues to be a dominant factor and tends to overshadow ideology and a rational approach to policymaking. The continued importance of the “ethnic factor” has occurred despite the establishment of a special mechanism for monitoring implementation of the 2011 Act. The Office of the Registrar of Political Parties (ORPP) was created with the sole objective of restoring order in the management and governance of political parties. It was enacted to address gaps in the Political Parties Act of 2007, as it pertains especially to a lack of clarity on political mergers and coalitions. “Under the Act, political parties have legal personality and therefore can sue, be sued and own property, among other functions” as written in the ORPP 2014 Act (p. 3). The Act further stipulates clauses aimed at enhancing the national representation and institutionalization of political parties in Kenya. More specifically, a “political party shall not be founded on religious, linguistic, racial, ethnic, gender or regional basis, nor shall it engage in corruption” (ORPP Act 2014, p. 2). According to the Act, the formulation of public policy positions and presentation of policy alternatives are among other fundamental functions expected of political parties in Kenya. Thus, any party should have geographical spread so that membership is reflective of a national party. A party should have support in at least 24 of the 47 counties in Kenya. This support is measured in terms of having at least 1000 registered members in these 24 counties. This basic requirement, ideally, guarantees that no party can rely on only one or two regions, to ascend into a position of power. It is therefore assumed that by following the law, political parties should be in a position to contribute meaningfully to the public policy processes. Further, to minimize party crossovers or defections by legislators, which have traditionally been a major problem of party politics in Kenya, the provisions in the Act discourage party disloyalty or support of another political party by legislators. The law, therefore, is quite clear on what action needs to be taken against errant party members. Even so, the enforcement of the Act by ORPP remains a challenge. It is in this context that we will take a closer look at how political parties have performed in

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public policymaking in Kenya focusing on (1) organizing capacity-­ building, (2) fostering public participation, (3) promoting gender equality, and (4) defending national security. Organizing Capacity-Building Political parties are the avenues through which citizens and civil society traditionally channel their grievances to the government. To enhance their capacity, nongovernmental organizations, mainly the Center for Multiparty Democracy (CMD) and Konrad-Adenauer-Stiftung (KAS), have stepped in to provide training and other capacity-building measures. These organizations train and link political parties with other policy stakeholders to build the capacity political parties need to be more effective in decision-­ making in various policy areas. CMD particularly “provides a platform for political parties, political actors, and policymakers to engage in dialogue and cooperate in strengthening multiparty democracy” (CMD website). These efforts have paid off in that political parties have more recently hired consultants to formulate and offer policy analysis and advice on the country’s constitutional reform agenda. The Building Bridges Initiative (BBI) and the Punguza Mizigo initiative are examples of how political parties in cooperation with each other try to strengthen the expert input in the formulation of policy views. For example, despite being criticized as an elite-driven and an alliance of political convenience, BBI demonstrates how activities of political parties in Kenya can fundamentally direct political narratives that shape public policy processes. Furthermore, political parties have become more active in shaping policymaking through the sponsorship of bills and controlling legislative committees in the Parliament. Most law amendments and corresponding policy changes have emanated from such bills. The ongoing debates between BBI, and the Third Way Alliance’s Punguza Mizigo, and Team Tanga Tanga illustrate the growing importance of contesting policy views for which they seek support from the public. Even so, the prevailing political regime and structures of patronage politics that are intolerant to divergent opinions are a threat to productive debate and consideration for competing views to those of the executive.

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Fostering Public Participation Within the framework of the 2010 Constitution, public participation is recognized as a core value of the public policy process. Article 118(1) requires the legislature to facilitate public participation in legislative and parliamentary-related business to ensure transparency and accountability. This consultative process should allow the government to arrive at policy decisions that reflect the will of the public. Political parties have often mobilized the public on critical policy issues allowing room for public debate and a response from the government. Public participation goes a long way in demystifying the policy process. It is a move away from the cliché that the government should decide for the public in priority areas because people do not know what is good for them, only government does. As was noted by Bobbio (1987), decision-makers are comfortable when the public displays ignorance, stupidity, and illiteracy because the status quo is maintained. In addition, decision-making in government agencies naturally suffers from the problems of bounded rationality. Political parties, therefore, are critical in aggregating and complementing executive policymaking processes. Capacity-building measures notwithstanding, political parties in Kenya have a long way to go to fully understand their role in policy processes. Instead of bringing views of the public to the table, they continue to be overly preoccupied with opinions circulating among the elite. Furthermore, when laws are passed, it is often done in a draconian manner which alienates the public. Political parties do not stand up on key issues as illustrated when President Uhuru Kenyatta presented a proposal on 8% Value-Added Tax on petroleum products in March 2020 and key opposition parties hardly opposed it although it constituted an increased burden on the public and was predatory in form. Instead, the opposition parties displayed enthusiasm in whipping their members into overwhelmingly supporting the bill in total disregard of the surging poverty, public debt, and unemployment levels among the youth in the country. In addition to the incapacity to effectively mobilize the citizenry by political parties over and beyond their ethnic base, there is the challenge of inadequate funding. This does not only make them structurally weak but also expose them to manipulation by the executive and well-resourced politicians. A proposal to introduce state-funding of political parties as envisioned in the 2011 Political Parties Act is still on hold because many believe that such public

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funding will compromise the autonomy of the parties and expose them to manipulation and frustration by the executive like has already happened in the case of the Judiciary and Constitutional Commissions. Promoting Gender Equality Kenya has been at the forefront in rectifying the gender imbalance of the conventional model of policymaking in which women tend to be under-­ represented. Kenya is historically a patriarchal and a male-dominated society. Women have been excluded from decision-making in public institutions. They have been more seriously affected by the prevailing socio-economic and political inequalities in the country. While responding to this, the Kenya Constitution (2010) imprints a two-third gender principle in both legislative bodies and public offices, meaning that women cannot be less than one-third of elected and appointed officials. Implementation of this rule is stalled mainly because of the wrangles and lack of commitment in key political parties to pass the Gender Bill. Between 2010 and 2020, four attempts were made to bring the bill to the floor of the House for approval. These legislative attempts failed because of the lack of quorum in the National Assembly. There are unfounded suspicions and accusations among male members of all parties that the bill is an attempt by women to take leadership “through the back-­ door”, and a strategy to “control men”. Consequently, there have been little enthusiasm and withdrawn attitudes by political parties to mobilize their members to enact the Gender Bill although it is a violation of the Constitution. This reluctance could potentially lead to the dissolution of Parliament although it is unlikely because there is no tradition of law abidance in the executive branch. On more than two occasions, the courts acting as per the requirements of Article 27(8) of the Bill of Rights declared that it was unconstitutional not to implement the Gender Rule. These court rulings have been blatantly ignored by the government and political parties. Therefore, political parties in Kenya selectively engage with policy issues contingent on the ruling elite interests as showed by frequent hefty raises of salary and allowances for legislators and retired executives. Their role as representatives of the public interest tends to be neglected in both executive and legislative policymaking.

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Defending National Security In October 2011, the Kenya Defense Forces (KDF) under the operation Linda Nchi (Protect the country) crossed over into Somalia, following the murder of a British tourist in Lamu and the kidnapping for ransom of his wife by an alleged Somalia terrorist group. This event was significant because tourism is the economic mainstay of the Kenyan economy that guarantees millions of dollars in foreign exchange. Any internal or external threat to the tourism sector compromises Kenya’s national security and sovereignty. Also, for the first time, the Kenyan Government was abandoning its Pan-Africanist approach informed by good neighbourliness and non-interference in the internal affairs of member states. It is within the context of Pan-Africanism that Kenya has avoided direct military confrontation with its neighbours like in the case of the occupation of Kenya’s Migingo Island by Uganda, a border dispute with South Sudan over the Elemi Triangle, and cross-border tensions with Ethiopia. The Somalia invasion, therefore, was an unprecedented step in its national security policy. The decision to send troops to Somalia to defend the country’s interest, however, was not well grounded among the political parties and backfired, as Klopp and Halakhe discussed in Chap. 3. The government in power at the time was a coalition that had been established following the 2007–2008 post-election violence. For example, Prime Minister Raila Odinga was against the invasion and Parliament was divided. There seems to have been little or no consideration of the long-term effects of this violation of territorial sovereignty. This most likely explains the lack of preparedness for retaliatory attacks that followed, notably at the Westgate shopping complex in 2013 where 71 people died, the Mpeketoni attack on the Coast in 2014, and the Garissa University attack in 2015 that left 148 dead. The point is that the divisions in government and political parties played a role in the incapacity of the government to effectively respond to terrorist attacks. The invasion was also financially expensive with the consequence that it siphoned funds from other sectors and constrained the budget. For example, in the 2012–2013 budget, the Kenya Defense Forces allocation increased to Ksh.70 billion, way above what it had been in the previous year. The government admitted that this diversion of spending from urgent social needs, including the education, health, and food security sectors, was necessary to sustain the war effort (Miyandazi 2012, p. 5).

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Concluding Remarks The institutional weakness of political parties that characterizes the political landscape in Kenya is a major shortcoming in the country’s ambition to implement the 2010 Constitution, especially its mandate to make governance more participatory. The Building Bridges Task Force has identified many of the measures that need to be taken to make politics in Kenya less reliant on blood ties and more on civic values (BBI Task Force 2019). Political parties need to break out of their parochial shells. They need to develop credible positions on public issues. They need to stand up to the excessive use of power by the executive to unilaterally control the policy agenda. They need to take their representative role more seriously and avoid a narrow elite perspective on the policy process. Although it is obvious what needs to be done, there is little movement in the right direction because the political parties continue to act as if politics always overrides policy considerations. What is good for those in power tends to make them blind to issues that do not affect their own status. The public interest is pushed to the side. The question is why it proves to be so difficult to achieve change. Kenya is modernizing, but its politics is not reflective of economic interest anchored in fundamental economic processes. There is no workers’ party, nor a party that stands up for other economic group interests. This is a main structural reason why political parties are not only weak but also flimsy: they lack an institutional backbone. To this should be added that individual citizens lack the incentive to organize collectively to achieve common goals or interests because they are more easily served by a patronage politics in which they are free-riders on the shoulders of a “Big Man” who sees his or her interest connected to what he can do for his constituency rather than as a representative forwarding national interests and public goods.

References Almond, Gabriel A., and James S. Coleman, eds. 1960. The Politics of Developing Areas. Princeton, NJ: Princeton University Press. Ball, Allan R., and B. Guy Peters. 2005. Modern Politics and Government. 4th ed. New York: Palgrave Macmillan. Bobbio, Norberto. 1987. Future of Democracy: A Defense of the Rules of the Game. St Paul, MN: University of Minnesota Press.

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Bratton, Michael, and Mwangi S.  Kimenyi. 2008. Voting in Kenya: Putting Ethnicity in Perspective. Afrobarometer Working Paper No 95. Bratton, Michael, Ravi Bhavnani, and Tse-Hsin Chen. 2012. Voting Intentions in Africa: Ethnic, Economic Or Partisan? Commonwealth & Comparative Politics 50 (1): 27–52. Building Bridges Taskforce Report 2019. Buiding Bridges to a United Kenya: From a Nation of Blood Ties to a Nation of Ideals: A Report by the Presidential Task Force on Building Bridges to Unity Advisory. Nairobi: Kenyatta Internation Convention Center. Chilcote, Ronald H. 1994. Theories of Comparative Politics: The Search for a Paradigm Reconsidered. New York: Avalon Publishing. Coleman, James S. 1958. Nigeria: Background to Nationalism. Berkeley, CA: University of California Press. Coleman, James S., and Carl G. Rosberg, eds. 1964. Political Parties and National Integration in Tropical Africa. Berkeley, CA: University of California Press. Elisher, Sebastian. 2013. Political Parties in Africa: Ethnicity and Party Formation. Cambridge, UK: Cambridge University Press. Fallers, Lloyd A. 1966. Bantu Bureaucracy. Chicago: University of Chicago Press. Goodnow, Frank J. 1900. Politics and Administration: A Study in Government. London: Macmillan. Hodgkin, Thomas. 1956. Nationalism in Colonial Africa. London: Frederick Muller. Jonyo, Fred, and Solomon Owuoche. 2004. Politics in Kenya: A Perspective. Nairobi: Azinger. Lemarchand, René. 1970. Ruanda and Burundi. New York: Prager Books. Lipset, Seymour M., and Stein Rokkan. 1967. Party Systems and Voter Alignments: Cross-national Perspectives. New York: Free Press. Listowel, Judy. 1965. Making of Tanganyika. London: Chatto & Windus. Mamdani, Mahmood. 1996. Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism. Princeton, NJ: Princeton University Press. Mattes, Robert, and Michael Bratton. 2016. Do Africans Still Want Democracy? Afrobarometer Policy Paper No 36. Mboya, Tom. 1970. The Challenge of Nationhood. Nairobi: Heinemann Educational Books. Miyandazi, Luckystar. 2012. Kenya’s Military Intervention in Somalia: An Intricate Process. Policy & Practice Brief. Nairobi: Accord. Office of the Registrar of Political Parties. 2014. The Political Parties Act in a Nutshell. Nairobi: Larryone Media. Oyugi, Walter O. 1997. Ethnicity in the Electoral Process: The 1992 General Elections in Kenya. African Journal of Political Science 2 (1): 41–69.

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Salih, Mohammed, and Per Nordlund. 2007. Political Parties in Africa: Challenges to Sustainable Multiparty Democracy. Stockholm: International Institute for Democracy and Electoral Assistance. Sartori, Giovanni. 1976. Parties and Party Systems. Cambridge: Cambridge University Press. Stokes, Susan C. 1999. Political Parties and Democracy. Annual Review of Political Science 2 (1): 340–365. Tordoff, William. 1997. Government and Politics in Africa. Bloomington: Indiana University Press. Weiner, Myron, ed. 1967. Party Building in a New Nation. Chicago, IL: University of Chicago Press. Wilson, Woodrow. 1887. The Study of Administration. Political Science Quarterly 2 (2): 197–222.

CHAPTER 7

The Politics of Implementation at County Level: Realizing Devolution in Kenya Peter Wanyande

Introduction Centralization and concentration of power have been a dominant feature of African politics since independence. Mainly in the interest of development and under some pressure from the international donor community, governments have grudgingly accepted decentralization, but in most cases only as a form of deconcentration, that is, an administrative decentralization within the central government. Only a few governments like South Africa and Uganda have gone as far as Kenya in introducing a decentralization scheme that delegates power to locally elected bodies, what is referred to in the literature as devolution. The latter is ambitious in the sense that it implies a shift in power away from the dominant executive. Such a move is bold but difficult in the African governance context where society tends to be socially divided along ethnic lines and the centrifugal forces in politics constitute a risk not only to national unity but also regime stability. The 2010 Constitution paved the way for this major devolution of power in Kenya and its implementation began in March 2013. Since then,

P. Wanyande (*) Department of Political Science and Public Administration, University of Nairobi, Nairobi, Kenya © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 G. Onyango, G. Hyden (eds.), Governing Kenya, https://doi.org/10.1007/978-3-030-61784-4_7

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implementation has already experienced many challenges. These include tension and conflict in the relations between the newly established institutions. Instead of developing the cooperative relations that the constitution anticipates, much of the period to date has been characterized by “turf wars” and “power plays” among key representatives of these various institutions. The actors include politicians at both levels of government, civil servants, civil society, and members of the public. Such a multitude of actors with conflicting interests and different perspectives on a given policy means that politics poses a potential threat to the effective delivery of services and goods that Kenyans expect from their government, whether at national or county level. These conflicts are indicative of the challenges that come from trying to combine bureaucratic effectiveness with popular participatory input in making policy—the hallmark of what the new constitution tries to accomplish in Kenya. After all, as Dye (1984, p.  1) emphasizes: public policy refers to whatever governments choose to do or not to do. The notion that governments as “masters of public policy” need to consider the view of others does not come easily to the minds of cabinet ministers or high-level civil servants. Yet, this is exactly what many Kenyans expect should be the “new normal”. This chapter highlights the political, institutional, and practical challenges to the implementation of devolution. Understood as the conversion of mainly physical and financial resources into concrete service delivery outputs in the form of facilities and services, or into other concrete outputs aimed at achieving policy objectives (Cloete and de Coning 2016, p. 137), there is pressure on government to realize its policy objectives as effectively as possible. Implementation, however, is more than a technical or managerial activity. Ever since Lindblom (1959) coined the concept of “the science of muddling through”, the literature accepts that policy implementation is as much political as administrative. The argument here, therefore, is that the implementation of the devolution policy and how it impacts delivery of services requires attention to its political dimension. The chapter is divided into three sections. The first provides the background and objectives of Kenya’s devolution; the second discusses the tensions and conflicts that have arisen in institutional relations; and, the third points to the prospects for realizing the parts of the promise that remain unfilled.

Background and Objectives The legacy of centralized government dates back till the colonial period. The nationalist struggle against it notwithstanding, the new government leaders after independence could not agree on a federalist form of

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government as laid out in the 1963 Majimbo Constitution. Instead, they amended it the following year to legitimize a continuation of centralized rule. It was against the background of the authoritarian tendencies that manifested themselves in the following decades that the call for a new constitutional dispensation emerged increasingly stronger (Mbondenyi 2013, p. 3). After decades of agitation for a new constitutional dispensation, the country promulgated the Constitution of Kenya 2010 on 27 August 2010. The hallmark of this constitution is the introduction of devolution. Two levels of government were established: one at the national level; the other at the county level. The push for a federalist government in Kenya did not end in 1964 and has been revived as part of the discourse on how to constitute a new more democratic form of governance. Federalism and devolution, however, are not the same thing. The former is a system of governance where the sovereignty is constitutionally divided between two levels of government, that is, one at the federal level, others at the provincial or state level. Devolution, on the other hand, is a system where the central government delegates powers to local governments at a sub-national level with jurisdiction to make and amend laws pertaining to their localities. Whereas both systems entail delegation of power, they differ in the degree that they do so. In devolution, delegated powers are not autonomous and in principle subject to reversal by the central government. As a system of government, it remains unitary while federalism entails a clear separation of powers, which can only be reversed by a constitutional court decision. Devolution in Kenya is a middle road between the over-centralized and federalist attempts of governance during the first 50 years of independence. Devolution in Kenya is a comprehensive system of sharing power between the centre and county levels, forming one of the key components of the new constitution. As Box 7.1 highlights, it is meant to address multiple objectives, not all of which are easy to reconcile or to achieve at least in a short to medium term. By strengthening the importance of democratic and accountable exercise of power, popular participation, and redistribution of public resources to the marginal and largely forgotten areas of the country, the bar of what Kenyans should expect from their government has been raised considerably. To the credit of those wielding power, they have followed up with a series of legislative acts meant to institutionalize the new order. A series of supporting laws were passed by parliament within the timelines stipulated in the constitution. These are the Transition to Devolved Government Act, 2012; the Intergovernmental Relations Act, 2012; the Urban Areas and Cities Act, 2011; the Public

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Finance Management Act, 2012; and the County Governments Act, 2012. These laws and institutions were considered critical complements for implementation of the devolution policy. Some institutions, laws, and systems were established specifically to facilitate the implementation of devolution. These include county executives headed by a Governor, County Assembly, County Assembly Service Boards (CASBs) and County Public Service Boards (CPSBs). The CPSB together with the CASB manages the human resource functions at the county level. The CPSBs are established by the County Executive with the approval of the County assembly. The practice so far has been that any incoming executive appoints new members of the CPSB, although it undermines their independence. The Public Service Commission (PSC) which manages the human resource function of the national level also arbitrates in conflicts between county employees and the CPSBs. The PSC, therefore, is an important player in the implementation of devolution at county government level. Box 7.1  Devolution Objectives in Kenya

The devolution objectives as listed in Chapter 174 of the Constitution are: (a) to promote democratic and accountable exercise of power; (b) to foster national unity by recognizing diversity; (c) to give powers of self-governance to the people and enhance the participation of the people in the exercise of the powers of the State and in making decisions that affect them; (d) to recognize the rights of communities to manage their own affairs and to further their own development; (e) to protect and promote the interests of and rights of minorities and marginalized communities; (f) to promote social and economic development and the provision of proximate, easily accessible services throughout Kenya; (g) to ensure sharing of equitable national and local resources throughout Kenya; (h) to facilitate the decentralization of State organs, their functions and services from the capital of Kenya; and, (i) to enhance checks and balances and the separation of powers. (Source: 2010 Constitution of Kenya)

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At the national level, the constitution creates the national executive headed by the President of the Republic, the National Assembly, and a Judiciary. It also establishes the Senate to make laws that affect counties and to protect counties and their governments. Because the delegated power is reversible, the balance in the new system is tilted in favour of the central government. The drafters of the 2010 Constitution feared the threat to national unity inherent in a federal scheme like the 1963 Majimbo Constitution, so they settled for this more conditional form of delegating power. In comparison with most African countries, this is still a system of power-sharing that is quite extensive and bold, which means that implementation is full of challenges. As discussed further below, there is widespread tension in how the political actors at central and county levels interpret their role, function, and power. In anticipation of these challenges, the constitution also provides for the creation of mechanisms for monitoring the implementation and for resolving disputes between institutions. The now defunct Commission for the Implementation of the Constitution (CIC) oversaw the legal implementation of the constitution while the National and County Government Coordinating Summit1 and the Intergovernmental Relations Technical Committee,2 established by the Intergovernmental Relations Act, 2012, are permanent committees that replace the 2010 Transition Authority (TA) with a mandate to facilitate the transition from the centralized to the devolved system. These intergovernmental bodies monitor how the various levels of government respect the division of functions agreed upon in the constitution. For example, the national government, in its relations with county governments, establishes national norms and standards while county governments, on their part, are primarily responsible for implementing policies in the social and natural resource sectors as well as other functions assigned to them. In some sectors like disaster management and tourism, the responsibility is shared between national and county governments. 1  This is the apex body of intergovernmental relations and consists of the President and the governors. Its primary duty broadly speaking is to provide a forum for the two levels of government to discuss matters of common interest with a view to finding amicable solutions to any disputes between the county and national government. 2  This body provides a secretariat for the Summit and performs any functions that may not have been completed by the Transition Authority at the end of its term. The transition authority is established by the Transition to Devolved Government Act, 2012 to facilitate and coordinate the transition to devolved government.

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Tensions in Implementation Devolution of power is potentially a huge regime change that is undertaken unless special circumstances prevail. Few other African countries have attempted something similar to what Kenya has done. Those that have, recognize that implementing the scheme is intricate and difficult, as Steytler and Ghai (2015) have shown with reference to South Africa and Sabiti (1998) with reference to Uganda. The constitutional reforms in both countries came about after dramatic events: in South Africa, the end of apartheid; in Uganda, the fall of Idi Amin. Despite the pressure that these events created in favour of regime change, central government has found it difficult to accept a diminution of its authority. The event that more than anything else forced the constitutional reform and a decentralization of power in Kenya was the postelection violence that erupted in early 2008. It released the pent-up demand for reform that reflected widespread dissatisfaction in the country, especially with the questionable ways in which elections were conducted. Thus, like in the other two countries, Kenya’s devolution is a reaction against both the excessive powers of the executive that had built up especially in the one-party era and the volatility of the rule of law. The question that this section addresses is how far devolution has been implemented. In doing so, it focuses on five crucial institutional interrelationships, between: (1) the National Assembly and the Senate, (2) the executive branches at central and county level, (3) branches of government at county level, (4) county governors and the Transition Authority, and (5) county governments and the public. The notion that there is tension and conflict in relations between branches of government is not peculiar to Kenya. It is inevitable in any system that strives for a democratic form of governance based on the separation of power (Hofferbert 1974). Politics may complicate the process of policy implementation, but it should be viewed as an integral part of governing Kenya, like it is elsewhere. The issue is the nature of politics that affects implementation. Is there respect for rules and the integrity of public office? Do actors at central and county levels respect each other and cooperate in the public interest as called for in the constitution? Do they possess a sense of humility that facilitates positive-sum rather than zero-­ sum outcomes? It is against such standards that the role of politics in implementation of devolution should be assessed.

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National Assembly Versus Senate The 2010 Constitution makes the Kenyan legislature bicameral by, in addition to the National Assembly, creating a Senate with the mandate to represent and protect county government interests at national level. More specifically, the constitution states that the Senate participates in the law-­ making function of parliament by considering, debating, and approving bills concerning the counties, the allocation of national revenue among counties, and exercises oversight over national revenue allocated to the county governments, as per Article 96 (2) and (3). Laws on matters affecting counties, therefore, must be debated by both the Senate and the National Assembly. The two chambers are constituted to perform different roles, but their interdependence requires a level of cooperation that produces positive outcomes, as confirmed in Article 189. The relationship between the two chambers, however, is better characterized as contentious with both engaging in “turf wars”. The National Assembly is “asserting superiority” and even questioning the rationale of the Senate, which, on its part, maintains that it is the guarantor of the devolved system and an absolutely essential condition for its survival and health (Lumumba and Franceschi 2014, p.  723). An example of this rivalry is the decision in 2013 by the National Assembly Speaker to treat the Division of Revenue Bill as the exclusive responsibility of the National Assembly although according to the constitution it is meant to be shared by both chambers. The dispute over the bill was referred to the Supreme Court, which ruled in favour of the Senate based on Article 163(6) of the constitution. This issue keeps being raised in public deliberations about the separation of functions and power in the Kenyan system. As an illustration, in a televised debate in April 2020 between the Majority Leader in the National Assembly, Hon. Aden Duale, and the then Majority Leader in the Senate, Senator Kipchumba Murkomen, and the former made it clear to his Senate counterpart that the national assembly is more powerful than the senate. Since both belong to the same political alliance, it is evident that the rivalry between the two chambers is about who controls what rather than who cooperates with whom. Under these circumstances, it is difficult to see how the two houses of parliament will find constructive ways to facilitate policy implementation at the county level.

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National Versus County Executive Governments at the national and county levels are distinct and inter-­ dependent and shall conduct their mutual relations based on consultation and cooperation, as per Article 6(2) of the constitution, a point that is reemphasized in Article 189(1) which states that government at either level shall perform its functions and exercise its powers in a manner that respects the constitutional status as well as the functional and institutional integrity of the other (Republic of Kenya 2010). Furthermore, it calls for cooperation between governments at the two levels to exchange information, coordinate policies and administration and enhancing capacity. The relationship between the two executives, however, has hardly been cooperative (Wanyande 2019). Instead, it has been characterized by constant attempts by the national government to demonstrate that it is the “senior” partner. Because devolution is a conditional delegation of power, not an absolute separation of it as in federal systems, the national government is not wrong from a constitutional point-of-view, but it lacks its spirit based on the premise of mutual respect. There are cases where the national government has unilaterally raided the functions of county governments at will yet expect their acquiescence. The national government has also at times clung to devolved functions (Transition Authority report 2017). Perhaps the most glaring example is the procurement of modern medical equipment by the national government. It was done without consultation with county governments although health is a devolved function. What caused an even greater fury was that the national ministry of health imposed the bill on the counties to pay. These concerns were summarized in the Daniel Muthama Muoki v. Ministry of Health in a High court case filed in May 2019  in which the Council of Governors was enjoined (Republic of Kenya 2019). The petitioners challenged the action of the Ministry on many grounds, notably that: the tendering process was opaque, there was no consultation between the two levels of government before the procurement, there is a lack of specialized personnel to operate the equipment in many of the facilities, and the bill was raised from Kshs 95 million to Kshs 2000 million per county government. This action has strained the relations between the two levels of government to a point where cooperation will be hard to restore. Furthermore, the action by the national government, in this case, has placed the county government in a major dilemma with its residents.

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Among the functions devolved to county government, health has proved the most difficult to implement. There is widespread dissatisfaction among health workers and strikes occur almost every year. Complaints range from delayed salary payments and poor working conditions in county hospitals to poor treatment by county officials, including the governors. For example, in April 2020, doctors and other medical workers went on strike over delayed salaries in Vihiga County. The strike began after the workers had waited two weeks for their pay. Like in this case, governors complain that many doctors do not report on duty even though they are on the payroll. In these circumstances, it is no surprise that these workers wish the health function to be retransferred to the national government. Counties have resisted this pressure. One proposal that attracted attention as a compromise would be the creation of an independent Health Commission to employ all health workers in the same way that teachers are employed by the Teachers Service Commission (TSC). It is not clear how far this would solve the problem in the sector because the experience of the TSC shows that it is not immune to the kind of wrangling that currently exists in the health sector. Governor Versus County Assembly The two arms of government at the county level have separate functions and powers as the executive and legislature at the national level. The first few years of devolution have witnessed major disagreements between the executive and county assembly across the country. These disagreements have revolved around two issues: budget-making and oversight of employees. Both are implementation functions that are part of the executive mandate, but assembly members have often interfered in how they are carried out. The 2010 Constitution gives the National Assembly powers to change budget proposals from the executive. The county assemblies lack this power but want to have it. The insistence by legislators at the county level has gone so far as to alter budget proposals from the executive to the point where it no longer appears to be a document prepared by the executive but by the legislature. In Trans-Nzoia County, for example, the Assembly included a budget item for the allocation of money to Wards, the administrative unit that falls under the control of the Member of the County Assembly (MCA). The creation of distinct county development funds is

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contrary to the constitution which states that (a) budgets are made by the executive, because it is the tool by which the executive implements the policies that the governor promised residents, and (b) budget making is the mandate of the executive, not the legislative arm of government. The MCAs have argued that as lawmakers they ought to have access to such local development funds in the same way as MPs have with their access to Constituency Development Funds (CDFs). When the county executives rejected this argument, MCAs responded by threatening to reject budgets from the executive and thereby paralyse the operations of the county government. The stalemate over this budgetary issue between the two levels of government led to violence between the Governor and the MCAs of Makueni county government. One MCA attempted to shoot the Governor for failing to bulge. The operations of the county government became dysfunctional as work including service delivery was compromised. The President, by Article 19 (2) of the Constitution and vide Kenya gazette Vol. CV11 no. 24 of 10 March 2015, established a Commission of Inquiry on 6 March 2015 to determine whether or not to dissolve the county government. The Commission submitted its report to the President on 3 September 2015 and recommended dissolution of the county government. The President, however, did not act on the report within seven days as required, and because of that, the county government was never dissolved despite paralysing service delivery which is a violation of Article 174 of the constitution. MCAs also tend to confuse policy implementation and policy oversight. This was demonstrated by the first term MCAs of Busia County who did not understand what oversight entails. This created tensions and conflict between the executive arm of the county government and the assembly. During a visit to the county government of Busia in 2012, the present author attended a meeting whereas a visiting Member of the Commission for the Implementation of the Constitution (CIC) was informed that MCAs were getting into the practice of physically inspecting the collection of revenue by county government employees and instructing them how to work, arguing that this was part of their oversight role. When told that what they were doing is implementation, a mandate of the executive, they did not agree. The MCAs clearly did not understand the demarcation between executive and legislative mandates and how each should be performed. Incidents like this have raised the question of whether there needs to be a minimum educational level for standing in elections to the county

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assemblies. It was rejected by the parliament, but the issue has not died because the dysfunctions in county governments have continued. These intra-county threats are not what the drafters of the constitution had in mind when they created the Senate to protect counties and their governments. They certainly did not envisage internal conflicts of this magnitude. These conflicts show that there are a power and supremacy battles not just between the county governments but also between players within the county governments themselves (Cornell and D’Arcy 2016). The assembly leadership does not fully understand the constitutional principle of separation of powers between the executive and legislative arms of government and the system of accountability associated with it. Members of both arms seem unaware that if one frustrates the other, the whole government becomes dysfunctional, a scenario that gives the President the right to dissolve the whole county government, as happened in Makueni. Governors Versus Transition Authority Relations between the Council of Governors (CoG) and the Transition Authority (TA) have also been a major source of tension and threat to policy implementation. The TA was established to facilitate and coordinate the transition to the devolved system of government as provided under Section 15 of the Sixth Schedule to the Constitution. It was also to serve as the Secretariat of the Summit, a forum that brings together the President and representatives of the county governments to share experiences and address common problems. The tensions have arisen out of two concerns among the governors. The first is the composition of the TA.  Because it was created before the county governments came into place, it was appointed by the national government. As a result, it was never been fully embraced by the county governments. Its impartiality has not been trusted and the TA itself did not do much to endear itself to the county governments. The second concern is that the TA never completed its work including such critical tasks as functional analysis and costing of functions, a failure that is admitted in its End Term Report (Transition Authority 2017). It has hampered the work of county governments and exacerbated the friction between national and county governments. The latter continues to maintain that they are not allocated funds in accordance with the cost of the functions they perform.

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Public Participation as a Source of Tension Implementation of devolution at the county level has also been affected by challenges of public participation. The constitution requires that the public participates in their governance including the public policy process. It is clearly stated in Article 10 of the constitution on the principles of governance. The requirement for citizen participation is also provided for in Section 87 of the 2012 County Governments Act. Incorporating public participation into policymaking, however, has not proved to be easy. To begin, the effectiveness of public participation requires, among other considerations, a well thought out participation framework that is understood and agreed upon by both government and the public. The absence of such a framework is bound to create misunderstandings and tensions among the actors. This seems to have been a major challenge at the county level. Counties are basically groping in the dark as each one does what it believes to be reasonable. The result is a series of frameworks that have been put together haphazardly. A study by the Elemika project reports that county assemblies have not enacted the necessary legislation to enable public participation. It goes on to say that although the executive may have attempted to involve the public in decision making, notably budgeting and selection of development projects, the exercise in many cases lacks formal structures and amounts more to the semblance than real civic engagement (Mulinge and Arasa 2019, p. 3). Several issues continue to be raised about methods and thresholds for participation. In most counties, residents complain that they are not adequately consulted, and in some cases not at all. The complaints include too short a notice of the meeting, lack of or insufficient information, the technical nature of the documents prepared by county officials for the public and inappropriate venues for participation. A case in point is the court case instituted by residents of Kiambu County against their government for excluding them from the discussion before the passage of the Finance Bill, 2013. The court overturned the law on 17 April 2014, because the public had not been able to have an input. There is also the issue of how inclusive participation is. In counties where public participation takes place, residents complain that participation is not inclusive because only a few people are allowed to contribute to the discussions. Residents also grumble that they are expected to attend meetings organized by not only the executive but the assembly on the same issue. This practice not only raises the use of scarce financial resources but also engenders a “participation fatigue”—the opposite of what devolution is meant

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to achieve. The fact that the two branches of government at the county level have not been able to coordinate this matter is another example of the rivalry between them. The reasons why popular participation is an issue in Kenya—despite its proud harambee legacy—is that participation has continued to be treated as “self-help” rather than civic right. The governance tradition in Kenya has been one of ruling in a top-down fashion which has inculcated in the minds of most Kenyans that they have no capacity to influence policymaking. This opinion was reiterated by respondents in the Elimika project study in the following words: “We are still just waiting. We do not have power. We do not get the time to air our views or grievances. Whenever we go to see the leaders, we are told we must follow protocol” (Mulinge and Arasa 2019, p. 92). Yet another cultural factor that makes participation problematic is the insistence that attending meetings should be compensated with a “sitting allowance”, a remuneration for participating. While voluntarism flourishes in community circles, it disappears in the public space, Kenyans, like Africans in so many other countries, do not extend the principle of voluntarism to the interactions with public institutions. It may be viewed as an irony that the key objective of involving the public in policymaking is so problematic. Experience to date indicates that it will take time and extensive civic education to bring about a change in the current situation. This does not mean that matters are stagnant, and no progress is made. There are examples, albeit few, of good performance, Makueni County being one of them, where public participation is deemed a success. Among other things, it has been able to implement a universal health care policy for its residents—ahead of what the national government has achieved.

Prospects for Realizing Devolution Looking to the future, it is relevant to ask what the prospects for devolution are. The tensions and challenges that have been covered above will not necessarily disappear altogether. Thus, there is reason to be cautious. Three factors are likely to determine the future of devolution in Kenya: (1) the ability of counties to become financially stronger, (2) the national government’s readiness to equalize socio-economic conditions among the 47 counties, and (3) the political will to pursue the policy of devolution and the accompanying measures that have been taken in this regard.

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The Revenue Imperative As a multi-ethnic society, Kenya is socially structured as a series of communities of consumption that rely to the largest extent on resources provided by the state. Politics in Kenya has largely been about rivalling communities gaining access to these public resources. The organization of the country into 47 counties confirms this but it does also formalize it in ways that provide the foundation for a change in the direction of turning these communities into greater contributors to their own development. A look at the extent to which the counties rely on government funding indicates that own-source revenues (OSR) is still small—on average less than 1 per cent of GDP—and varies tremendously among counties with major urban areas like Nairobi, Mombasa, Kiambu, and Nakuru having the largest share while those in the north and northeastern parts of the country, not surprisingly, having the smallest share. Article 209, paragraph 3, authorizes the counties to impose property and entertainment taxes as well as charging fees for domestic trade of agricultural produce, usually referred to as the Cess. To enhance their revenue, many counties levy Cess also on non-agricultural commodities such as sand and forest products. The problem with the fees that are charged on trade is that transporters are being forced to pay every time they cross a county line. This raises the costs of goods to the public and how it is most fairly and effectively regulated is an issue that has not been resolved. Some counties have done better than others in raising their share of own funding, but it has not always been easy to sustain these achievements. Thus, for example, Busia and Nyamira counties in western Kenya started very well in the first two financial years (Republic of Kenya 2013; 2014; 2015) but the share then fell (Development Initiatives 2018). There are several reasons why achievement tends to be low and varies. One is the forecasting and analysis that underpin the targets. This important exercise is often politicized or raised to make the county government look responsible in the eyes of national government officials who monitor county finances. A second is the antiquated methods by which revenue is collected. Because electricity is not always available, digital means are seldom used. Instead, it is done manually or semi-manually. Yet another reason is corruption, often involving the taxman himself bargaining with the taxpayer for a lower rate in return for a bribe. The conclusion that should be drawn from this is that there are opportunities for counties to increase their share of own funding but there are also limits to achieving it in many parts of the country. The poorer

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counties, especially those in the arid and semi-arid areas, will have to rely on outside sources for their development. The Delivery Imperative The constitution provides for a special mechanism to assist the marginalized regions and communities to catch up with the more economically advantaged regions. It has given communities in poor counties the hope of a better future under devolution. Article 204(1) establishes an Equalization Fund into which shall be paid one half  per cent of all the revenue collected by the national government each year calculated based on the most recent audited accounts of revenue received, as approved by the national assembly. The following paragraph of the same Article goes on to provide that the national government shall use the Equalization Fund to support basic services including water, roads, health facilities, and electricity in marginalized areas to the extent necessary to bring the quality of those services to a level generally enjoyed by the rest of the nation. An important provision in Article 204 is that any unexpended money in the Equalization Fund at the end of a particular financial year shall remain in the Fund for the use in accordance with clauses during any subsequent financial year. This Article lapses after 20 years but it may be renewed and extended by parliament for another fixed period. The promotion of equitable development in Kenya is politically important. As a core objective of the devolution, it addresses an issue that ever since colonial days has been an eyesore for many Kenyans. The discrepancy in livelihood comfort between the rich highlands and the marginalized areas to the north has led to the stigmatization of people living in the latter areas. Pastoralist communities have often been treated as second-class citizens. That is why bringing about a more equitable development is so important. Even though the Equalization Fund receives only 0.5 per cent of the total annual revenue collected by the country, it is an important corrective mechanism that is much appreciated in the benefitting poorer counties. Some argue that it could do better in terms of both efficiency and equity (e.g. International Budget Partnership Kenya 2018). This criticism is based on the use of criteria that weight poverty criteria in ways that make the distribution of finances miss some of the neediest at levels below the county. Despite such critique, the Equalization Fund has brought development to the marginalized areas of the country that they had not seen during the first 50 years of independence. Judging from the chorus of support expressed at the annual Governors Conferences, even counties

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that do not directly benefit from the Fund support devolution because they also recognize that delivery of services has improved. Thus, even if the counties could do better concerning both efficiency and equity there is widespread support for devolution at county level around the country. The Political Imperative The issue is how strong that support is at the national level. Many Kenyans may remember that the current President and Vice-President of the country were among those who expressed reservations about decentralization during the period it was being debated in the early 2000s. The voice of influential politicians matters because civil servants and members of the public tend to follow their lead. Another worry is that unexpected events such as the COVID-19 pandemic may create financial constraints that could adversely affect financing at the county level. These are clouds that hang on the horizon and pose potential threats to the future of devolution. The challenge that Kenya still faces, therefore, is to not only mobilize but also sustain a political will to develop devolution further. It is only one of many factors that politicians at the national level must consider. Maintaining national unity and regime stability may easily override support for devolution. How to balance concerns at the national level with what is viewed as important at sub-national level is not easy in any circumstance but it becomes especially tricky when the country is challenged by factors over which it has limited control. Building bridges at an elite level easily becomes the overriding priority at the expense of sharing power with the counties. The most recent such exercise which grew out of the “handshake” between the President and Leader of Opposition in 2019 indicates a willingness to go beyond “tribal” politics, but it is much less specific about devolution (Building Bridges Task Force Report 2019). As an agreement between the leaders of the two largest ethnic groups in the country with little at stake in devolution, it is not given that it will be given the attention it deserves to be fully implemented.

Conclusion Devolution remains a work in progress. As this chapter has indicated, there is much to be done: understanding roles and functions are often lacking; civic consciousness is weak; there are issues of resource mobilization and allocation, and capacity is often lacking at county government

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level. Still, the overarching problem is politics. There is little evidence that the respect for the integrity of the public office, cooperative relations between key actors, notably the national and county executives, or working towards positive-sum outcomes in the public interest—the criteria we listed earlier—are being followed or being achieved. Personal ambition and interest often take precedence leading to conflict rather than consensus, corruption rather than integrity, and ‘club’ goods, that is, those benefitting certain groups at the expense of others, rather than public goods that apply to everyone regardless of political patronage connection. In a situation where the delegated power is conditional and counties find it hard to raise their own revenue, the future of devolution will hinge on the strength of political will at the national and sub-national level to realize the full promise of devolution—and thereby a more effective implementation of public policy.

References Building Bridges Task Force. 2019. Building Bridges to a United Kenya: From a Nation of Blood Ties to a Nation of Ideals. Nairobi: Office of the President. Cloete, Fanie, and Christo de Coning. 2016. Improving Public Policy. Hatfield, South Africa: Van Schaik Publishers. Cornell, Agnes, and Michelle D’Arcy. 2016. Devolution, Democracy and Development in Kenya. ICLD Research Report No 5. Visby, Sweden: International Centre for Local Democracy. Development Initiatives. 2018. Strengthening Sub-National Government Own-­ Source Revenue Mobilization in Kenya: Progress, Challenges and Opportunities. London: Development Initiatives. Dye, Thomas. 1984. Understanding Public Policy. Englewood Cliffs, NJ: Prentice Hall. Hofferbert, Richard. 1974. The Study of Public Policy. New  York: The Bobbs-­ Merrill Company. International Budget Partnership Kenya. 2018. Is the Equalization Fund Distributed Fairly? Spotlight on Equity Issue No 3. Nairobi: IBP-Kenya. Lindblom, Charles E. 1959. The Science of Muddling Through. Public Administration Review 19 (1): 79–88. Lumumba, P., L. Odenda, and Luis Franceschi. 2014. The Constitution of Kenya, 2010: An Introductory Commentary. Nairobi: Strathmore University Press. Mbondenyi, Kiwinda M. 2013. Introduction. In The Constitution of Kenya. Contemporary Readings, ed. P.L.O.  Lumumba and K.M.  Mbondenyi, 125. Nairobi: Law Africa Publishing.

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Mulinge, Munyae, and Josephine J.  Arasa. 2019. The Devolution Pathway to Equitable Regional Development. In Knowledge for Wealth Creation: A Kenyan Perspective, ed. Judith Bahemuka et al. Nairobi: University of Nairobi Press. Republic of Kenya. 2010. The Constitution of Kenya 2010. Nairobi: Government Printer. ———. 2013. Kenya Gazette. Advisory Opinion No 2 of 2013 in the Supreme Court of Kenya Between the Speaker of the Senate, the Senate of the Republic of Kenya (applicants), the Attorney General, Speaker of National Assembly (interested parties), the Law Society of Kenya, the Commission for the Implementation of the Constitution and Katiba Institute (as Amicus Curiae). ———. 2014. The Kenya Law in the High Court of Kenya at Nairobi i. Petition NO.532 of 2013 Consolidated with Petition NOs 12 of 2014, 35, 36 of 2014, 42 of 2014 &72 of 2014 and Judicial Review Miscellaneous Application No 61 of 2014. ———. 2015. The Kenya Gazette. Vol. CXVII-NO 24,10th (March). Nairobi: Government Printer. ———. 2019. Controller of Budget County Annual Budget Implementation Report for 2018/2019. Nairobi: Government Printer. Sabiti, Makara. 1998. Political and Administrative Relations in Decentralisation. In Decentralisation and Civil Society in Uganda: The Quest for Good Governance, ed. Apolo Nsibambi. Kampala: Fountain Publisher. Steytler, Nico, and Yash Pal Ghai, eds. 2015. Kenyan-South African Dialogue on Devolution. Johannesburg: Juta and Company. Transition Authority. 2017. Transition to Devolved System of Government in Kenya (20122016). The End-Term Report. Nairobi: Government Printer. Wanyande, Peter. 2019. Implementation of Kenya’s Devolved System of Government. In Knowledge and Wealth Creation: A Kenyan Perspective, ed. Judith Bahemuka. Nairobi: University of Nairobi Press.

CHAPTER 8

Policy Implementation as Principal-Agent Problem: The Case of Kenya Wildlife Service Parita Sureshchandra Shah

Introduction The purpose of this chapter is to highlight the challenges of policy implementation in the biodiversity field, one of the most crucial policy areas in Kenya. More specifically it is examining the role of the Kenya Wildlife Service (KWS) in implementing the 2012 National Wildlife Conservation and Management (Draft)  Policy—henceforth the 2012 Wildlife Policy (Republic of Kenya 2012). Focusing on that topic at this point is especially relevant because the new 2010 Constitution of Kenya (Republic of Kenya 2010) has changed the institutional landscape in significant ways, notably through devolution of power to local authorities at the county level, creation of new independent public bodies, and integration of local communities into the public policy process. Being able to effectively manage this process in a multi-stakeholder environment is a pertinent challenge worth examining further. To problematize what is happening the chapter relies

P. Sureshchandra Shah (*) Department of Geography and Environmental Studies, University of Nairobi, Nairobi, Kenya e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 G. Onyango, G. Hyden (eds.), Governing Kenya, https://doi.org/10.1007/978-3-030-61784-4_8

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on the principal-agent model. It helps to lay bare the more serious implementation issues while also indicating what works. The chapter is divided into five sections. The first sets out the context in which policies are made in Kenya today; the second introduces the principal-agent model; the third introduces the agency—Kenya Wildlife Service; the fourth focuses on the operations, that is, how principal and agent relations function in this new and complex institutional set-up; and the fifth identifies and discusses the results. The chapter concludes with a summary of the main points. It should be pointed out that the material for this chapter has been adapted from my doctoral dissertation.1 Apart from consulting documents, the research entailed interviews with KWS staff at different institutional levels as well as surveys of local households in or adjacent to areas where KWS is working and biodiversity is an issue.2

The 2010 Constitution Policies are the principal tools that governments use to improve the well-­ being of their citizens. They are typically developed based on the need of present generations to also benefit future ones. To assess how “good” a policy is, implementation is the key factor (Hudson et al. 2019). “Policy implementation” refers to the means, resources, and relationships that link policy to action. The process begins after a policy has passed through parliament, has been put into law, and financial and human resources have been secured (Hupe and Hill 2016). Policy implementation was for a long 1  Shah, Parita 2016. Domestication and implementation of biodiversity-related multi-lateral agreements in Kenya. Unpublished thesis, University of Nairobi. 2  In terms of research design, the study used both quantitative and qualitative approaches. It used a cross-sectional survey design to collect the data relying on multi-stage sampling, both random and purposive. The former was used in surveying household respondents (heads only) as it is unbiased and represents the total population; the latter was applied for obtaining information from KWS staff at offices and protected area sites. Thus, the primary data was obtained from staff working at the KWS and household respondents by using semistructured questionnaires, while secondary data was gathered from various reports issued by institutions active in the biodiversity field, the most important being the 2012 Wildlife Policy document (RoK 2012). The target population was divided into three main groups: (1) staff at the KWS headquarters, (2) staff at various field sites, and (3) community household respondents living around biodiversity sites included in the research. The first two groups served primarily as informants while the third group served as respondents providing information in their role as both recipients of policy messages and potential participants in activities sponsored or supported by the KWS.

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time regarded as a straightforward thing but with a growing interest in studying it, analysts realize that many factors influence what is happening (Spicker 2006): political interests collide; human behaviours differ; and implementers may not fully understand instructions or interpret them in different ways. Governments, on their part, have also come to recognize the complexity of implementation by learning from experience, including failures (Volcker 2014). As Hudson and his colleagues (2019) demonstrate, policy failures are especially likely where governance is dispersed, coordination is needed, and expectations are high. This description fits the situation in Kenya today. Its new constitution has made governance more challenging by raising political expectations among citizens and devolving authority to local county authorities as well as independent institutions. These are commendable steps for a country on the African continent where centralized rule tends to prevail. It sets the country apart in many key policymaking respects. The conventional linear and top-down model of the policy process beginning with agenda setting, policy formulation and then finally implementation as a purely administrative activity, described, for example, by Johansson (2010), Dye (2013), and Hupe (2014), is not a sufficient guide in contemporary Kenya, which tries to modernize its governance through such mechanisms as public-private partnerships, multi-agency approaches, and policy networks. Bringing about this new order, however, is not easy and takes time. Despite efforts by the government to train public servants and invite members of the public to participatory forums, uncertainty about who has authority over what keeps manifesting itself as policies and laws are implemented under the new constitution. Its forward-looking nature has also led to a disconnect between promise and practice when it comes to several policy issues, for example, gender equality. The constitution stipulates that each government institution should have at least one-­ third of each gender in leadership positions but realizing a bold objective like that runs into structural impediments that cannot be eased in a short time. A study by Kilonzi and Ndung’u (2014) in Laikipia County, for example, found that 73.2% of all heads of department in the county government were male, the reason being that there was a shortage of educated women. Although the shortfall, in this case, is small, the situation in Laikipia is not unique and explains why the gap between promise and actual practice is likely to be an ongoing challenge. At the national level,

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the same problem has arisen, for example, in conjunction with implementing the ambitious Vision 2030, the country’s long-term view of where it wants to be at the end of this decade. In this case, the largest shortcoming has been insufficient resource mobilization despite efforts to engage public-­private partnerships. This chapter recognizes that in the country’s emerging more complex policymaking context it makes sense to adopt a principal-agent approach to capture the dynamic that creates uncertainty and conflict over authority. It will do so by focusing on the implementation of the 2012 Wildlife Policy which in the Draft form, was widely implemented to fulfil the objectives of the Convention on Biological Diversity (CBD) and other multilateral environmental agreements (MEAs). Wildlife in Kenya is a core component of biodiversity, that McNeill and Shei (2002) and the United Nations (2002) refer to as a “life assurance asset” not only for Kenyans but for all humans on Earth. Thanks to its location in the tropics, Kenya is endowed with a rich diversity of flora and fauna. This biodiversity caters for a broad range of human needs such as food, shelter, water, and medicines (Swiderska et  al. 2008;  Shah and Ayiemba 2019). It is, however, disappearing in Kenya and elsewhere at an unprecedented rate resulting in serious losses of essential values to humans and animals alike (CBD 2010).

The Principal-Agent Model The principal-agent model is a common way of describing the contractual relationship between an asset holder and the person or institution responsible for managing the asset. The model has its roots in contractual law but has been heuristically used in business, economics, and policy studies to highlight implementation issues (e.g. Williamson 2000; Walker 2007; and Howlett 2018). Examples would be an employer applying financial incentives to ensure employees perform well or, a government that for efficiency or other reasons devolves authority to lower-level organs. Whether formalized or not, the principal-agent relation relies on mutual trust. Such trust, however, is not always present or easy to gather. There are at least four reasons why the relationship may turn into a problem. The first is that the principal and agent have different interests that are not easily resolved in implementing the contract. An example would be the conflict that has emerged between politicians and medical doctors over how to proceed in combatting the COVID-19 virus. Second, the agent may possess

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information that the principal lacks giving the former leverage to challenge the principal. Such would be the case, for example, where the parliament delegates authority to a government ministry to implement a specific law or a minister delegates to his civil servants to carry out a policy instruction. The principal does not have the same access to crucial, often specialized, information that the agent possesses and can use as leverage in a policy discussion. A third reason is when the agent comes under the direction by more than one principal, a condition that is not uncommon in complex governance contexts. The result is that the agent is left with mixed signals and the difficulty of serving two masters at the same time. The fourth reason is that in multi-level governance situations like in Kenya, some public institutions may end up serving in one instance as an agent, in another as principal (Norris et al. 2014). These principal-agent problems have been identified in policy studies as hindrances to effective policy implementation (e.g. UK’s National Audit Office 2013; OECD 2015; Ilott et al. 2016; Institute for Government/ Chartered Institute of Public Finance and Accountancy 2017). Despite calls for making the policy more evidence-based and, in the interest of results management, for imposing stricter implementation timelines, uncertainty often prevails regarding such key elements as costs, benefits, and risks. Furthermore, “best practices” developed in one country are not easily transferable to another (Braithwaite et  al. 2018). As Ansell et  al. (2017) and Gazley (2017) conclude, therefore, policy implementation can go awry in many ways and requires both vertical and horizontal consultation and collaboration to be effectively tackled. The Kenyan wildlife sector is an especially suitable case study because it highlights the principal-­ agent problem in a complex policy context where the Kenya Wildlife Service (KWS) performs the dual role of agent for the Ministry of Tourism and Wildlife (MTW), formerly the Ministry of Environment, Water and Natural Resources, while also having a strong voice in shaping national policy by its significant role and specialized knowledge. Its terms are further complicated because the KWS has its own legal autonomy and is expected to interact with the 47 county-level authorities with funds for policy implementation being shared between the national government, county governments, and the KWS. In addition, the agency has responsibility for developing and supporting local conservancies and benefit-­ sharing schemes as well as educating citizens on the value of protecting biodiversity. The challenges that arise in playing these multiple roles become evident in a closer examination of KWS and how it works.

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KWS as Agent and Principal Kenya Wildlife Service is one of 61 governmental agencies or state corporations in Kenya. Other examples would be the Kenya Forest Service (KFS) with which KWS often collaborates, the Kenya Medical Supplies Agency (KEMSA), and Kenya Airports Authority (KAA). These institutions to which government has delegated authority for carrying out its policy objectives are present in all sectors. KWS was established by an Act of Parliament (Cap 376) in 1989. The main mandate of KWS is to conserve and manage wildlife in Kenya, and to enforce related laws and regulations. It undertakes conservation and management of wildlife resources across all protected area systems in collaboration with stakeholders. Working with others is an important aspect of protecting and sustainably managing wildlife resources. For example, its community wildlife programme encourages biodiversity conservation by communities living on land essential to wildlife, such as wildlife corridors and dispersal lands outside parks and reserves. The programme motto is that “if people benefit from wildlife and other natural resources, they will take care of them”. As principal, the MTW has overall responsibility for developing policy and setting the parameters for its implementation. It also devises mechanisms for monitoring and evaluating how the policy is being implemented and provides human as well as financial resources to its various agents, including the 47 county governments. Counties with mega-biodiversity and protected areas receive more funds than counties with less biodiversity and fewer protected areas. Since some of these areas are managed directly by KWS, it receives its own share of the national budget to meet its policy objectives. In some cases, financing is shared, and the issue of multiple principals arises. Such is the case with “Ramsar” sites, that is, those protected by the Global Wetland Convention (GWC). The most prominent “Ramsar” sites are the three Rift Valley lakes—Elementaita, Naivasha and Nakuru—which fall under Nakuru County authority but are funded jointly by the KWS and the County. This is different from the tourist rich Maasai Mara National Reserve (MMNR) which is under Narok County management with funding coming from the county government only. As an agent, the KWS is expected to conduct an analysis of the situation and identify threats and opportunities relating to the implementation of the country’s Wildlife Policy. It performs many roles and involves local communities in much of its work including biodiversity conservation, benefit-sharing, educating citizens on different ways of conservation, and

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training staff to combat poaching and illegal trade in biodiverse goods. In some areas like the Arabuko-Sokoke Forest on the Indian Ocean coast, the Kenya Forest Service (KFS) and KWS have partnered with the local communities in a conservation effort to enable the Kipepeo (Butterfly) Project in the area become a profitable benefit-sharing venture. Due to its own budgetary constraints, KWS also partners with non-governmental organizations (NGOs) to work with communities in areas of abundant wildlife and to set up conservancies on community lands. For example, the KWS together with the World Wildlife Fund (WWF) has been working to strengthen the local Ol Pejeta Conservancy in Nanyuki with the view to protecting the Northern white rhinos who are in danger of extinction. This and other of its activities are scientifically verified and published in reports regularly. In addition to partnering with other government agencies, county governments, and NGOs, KWS manages all state-protected areas in the country and spearheads the implementation of MEAs like the CBD, mentioned earlier. Its outreach also includes work with the Wildlife Clubs of Kenya (WCK) to popularize environmental education amongst students’ and youth groups and with the Kenya National Examination Council (KNEC) to make wildlife-related subjects examinable at primary and secondary levels. The complex policy world of the Kenya Wildlife Service is graphically illustrated in Fig. 8.1. As the figure indicates, KWS has a wide and varying mandate. It involves bringing together under a single roof distinct activities such as law enforcement, park management, research, and education. Its many functions and roles are summarized for explanatory purpose in Table 8.1. Kenya’s national parks and biodiversity sites such as the Kipepeo project mentioned earlier are internationally known tourist attractions. They are the principal reasons why approximately two million people visit Kenya every year. In competition with other biodiversity destinations in Africa, for example, Botswana, South Africa, and Tanzania, as well as in other regions of the world, Kenya must ensure that its parks and sites are in good condition. This means more than anything else that roads to and inside the parks are in good conditions, the lodges and tented camps offer excellent services, and staff at site entrances are polite and service-minded. As an agent on behalf of the Kenyan government, KWS has the most important role in this maintenance task. Given that the number of visitors has held steady or gone up over the years, its performance has been good, if not excellent.

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Implementing directive MAIN PRINCIPAL GoK Ministry

More funds More human resources Performance evaluation

MAIN AGENT (implementor) – KWS

Involving stakeholders e.g. communities, NGOs In situ and ex-situ conservation Training staff Educating citizens

Drivers of success

Using technology e.g. Global Positioning Systems

Identification of opportunities

Benefit sharing Community ranches More protected areas Research on biodiversity Protecting species from becoming endangered e.g. Northern White Rhinos

Results Successful policy implementation through reporting and scientific evidence

Fig. 8.1  Graphical illustration of principal-agent relations involving the KWS. (Source: Author)

Multiple wildlife movies and videos have been shot in Kenya over the years, many of them about saving the wildlife from poachers. The heroes have typically been the wildlife rangers, that is, the KWS law enforcement staff. Poaching reached its peak in the early 2010s and has declined steadily thanks to more effective enforcement of anti-poaching measures since 2015 when they were stepped up in response to both local and

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Table 8.1  Main functions and roles of the Kenya Wildlife Service Function

Activity

Location

Park maintenance Law enforcement Treaty coordination Research

Keeping roads and facilities in Biodiversity sites good shape Anti-poaching Biodiversity sites (on and adjacent) Monitoring global protocols Biodiversity sites

Agent

Wildlife censuses

Agent

Education

Awareness-raising

Outreach

Benefit-sharing

Inside and outside of biodiversity sites Schools, clubs and on invitation Local communities

Role Agent Agent

Principal Principal

Source: Author

international outrage. According to a statement by the Director-General at the end of 2019, poaching in the country declined by 90% between 2012 and 2018 (Xinhua, 31 December 2019). This is another crucial measure of how Kenya can sustain its position as an attractive and viable biodiversity destination. This does not mean that the loss of wildlife has been curbed across the country. Much of it takes place outside the protected areas. A report by Ogutu et al. (2016) shows that Kenya’s megafauna has been reduced by more than two-thirds (68%) in the past 40 years. The heaviest losses are outside the protected areas, where over 80% of the wildlife in the country can be found (Ogutu et al. 2011; 2016). In addition to poaching and fires, habitat losses are a big problem due to population increase, development projects, and climate change as reflected in a 2018 Ministry of Tourism and Wildlife report which shows that 356 plants, 28 avian, and 33 mammalian species are under constant threat of extinction (MoTW 2018). Kenya is a signatory to many international treaties affecting the wildlife sector and KWS has been given the mandate by the ministry to coordinate the task of reporting on the obligations these commitments entail. It is well-placed to perform this role given its own close involvement in international activities in the biodiversity field. With the United Nations’ Environment Programme (UNEP) headquartered in Nairobi, there is extra pressure on the Kenyan government to take these international treaty obligations seriously. Thus, being the agent of the Government of Kenya as the overall principal, this is a function of great importance.

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KWS has always been underfunded and its own financial management has been poor but given the significance of the Kenyan wildlife sector in a wider global perspective, funds for research and other functions have typically kept arriving. This means that KWS has been forced to accept more than one principal since these external funders have insisted on strict reporting on the use of their money. This relation has often been portrayed in terms of the partnership, but the reality is that external funders, whether donors or philanthropies, have not trusted the KWS accounting office. The role of KWS as principal is significant because it deals with making people aware of the value of wildlife not just to the country at large but to local communities. The biggest challenge in making members appreciate the value of the country’s wildlife is the damage that wild animals occasionally do to planted crops or domestic herds. For example, elephants trample over cultivated land and destroy trees and crops; carnivores kill goats and other domestic animals. The risk of such conflicts between wildlife and humans has been increasing in recent years, resulting from expanding human habitation. The education function is one measure that KWS uses to change the outlook on wild animals among Kenyans. In addition to working with local communities adjacent to the biodiversity sites, the core activity takes place at primary and secondary schools as well as among youth clubs. Targeting the young is deemed to be crucial for sustaining a positive outlook on the value of biodiversity and especially wildlife. The final of its core functions is establishing benefit-sharing schemes in which conservation is combined with providing benefits to local participants. This usually goes under the name of community-based conservation. As it already has in southern African countries, where the approach was first tried, it helps local communities to embrace the conservation philosophy. Serving as principal, KWS has worked to create local conservancies that are owned and managed by the community. This is not an easy task in rural communities where the experience of collective management has not always been a happy one as, for example, the demise of the country’s producer cooperative movement years ago indicates (Hyden 1973). Yet, this close working relationship with local stakeholders is in line with the ideology underlying the new constitution and is appreciated in political circles—even if at times it may compete with elected politicians.

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KWS Too Big to Fail? KWS may not be unique among Kenya’s many government agencies and corporations but it certainly is special. Occupying the intersection between domestic and international demands for action on biodiversity, it is under constant scrutiny in ways that do not apply to other such entities. Being a recipient of external funding, it can only ignore these funders at its own cost. Featured in wildlife movies and other media showing its anti-­poaching campaign, it is to many people in other countries, Kenya’s face to the world. One could argue that directly or indirectly, KWS carries much of Kenya’s present and future on its shoulders. It is legitimate, therefore, to raise the question whether KWS is “too big to fail”, the phrase that was applied to the J.P. Morgan and other mega-banks at the time of the 2008 global depression. Its high-profile status attracts the interest of many local and international actors in shaping its agenda and policy, but it also gives KWS some clout. It does not have to be zealous all the time. Because of the importance of the wildlife policy, funds will come in even if it underperforms. It is too important to fail; as a hub in the wildlife sector, it cannot be replaced. Any intervention must be confined to a “shake-up”, a measure to which government has resorted, most notably in reshuffling top management in 2015 and two years later amending the policy itself still in the Draft form. The principal-agent model highlights these tensions. The following three issues capture most of what is going on: (1) the multiple principal problem, (2) the agent motivation challenge, and (3) the agent-beneficiary relation. The Multiple Principal Problem The multiple principal problem manifests itself in three different ways in Kenya: (a) lack of policy continuity, (b) overlapping policy jurisdictions, and (c) international obligations.  ack of Policy Continuity L With the loss of biodiversity growing and the world demanding greater attention to conservation issues, the wildlife policy context has been evolving quite rapidly since the 2012 Wildlife Policy was adopted. Reflecting these changes and the adoption in 2015 of the global Vision 2030 and its Sustainable Development Goals (SDGs), the policy was revised in 2017 but remains in a Draft form (RoK 2017).

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Special reference was made to failure to deal with “chronic” issues like poaching, human-wildlife conflicts and loss of wildlife species because of diseases, climate change, privatization of land ownership, and invasive species, as well as adequately addressing key issues like funding, technological innovations, and partnerships. This amendment meant a toughening of anti-poaching measures and reflected President Uhuru Kenyatta’s appointment of Dr Richard Leakey as its Board Chairman in 2015. Being a “straight shooter”, Leakey was instrumental in getting poaching under control, but in so doing he also made enemies among many prominent Kenyan politicians. Although Leakey left his role in 2019, there has been an ongoing rivalry in government among those who support the original 2012 version and those who favour the 2017 amendment. This rivalry has affected KWS to the point where confidence in its leadership has been at risk. Calming the situation is not easy because of its high-profile status in the Kenyan governance setting. It confirms the costs to the organization that follows from being forced to respond to more than one voice.  verlapping Policy Jurisdictions O Despite its significance to the country’s development, biodiversity and wildlife conservation is not the only policy that concerns people in Kenya. In fact, many of them, especially in rural areas, are viewing wildlife as more of a threat than an asset. The Kenyan government and many voluntary organizations, in coordination with KWS, are working to change this but people living adjacent to wildlife parks and reserves often suffer damage to their crops and animals. This means that other ministries such as Agriculture and Home Affairs have a say in what to do with wildlife, notably those outside the protected areas where most wild animals are. In addition to competition among national ministries—and sometimes rivalling politicians—several of the 47 governments that were set up following the devolution are also involved in wildlife protection. As indicated earlier, Narok County is solely responsible for funding the Masai Mara National Reserve and Nakuru County shares the financial responsibility with KWS to manage the protected diversity sites around the three Rift Valley lakes— Elementaita, Naivasha, and Nakuru. International Obligations Because KWS has never been fully funded by the government, a good share of its workload has been supported by external funders. They have been sympathetic to the biodiversity cause, but even so, they have insisted

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on having a voice over how KWS operates, a legitimate concern given the agency’s record of poor accounting. Even though they have not claimed representation on the board, leave alone interfering with day-to-day management, their voice has been difficult for the KWS leadership to ignore. For example, financial support for KWS during the 2012–2016 period was led by biodiversity NGOs, followed by the Government of Kenya, donors like the European Union and Government of Japan, and UN-based institutions such as the Global Environment Fund, in that order (Shah 2016). These partners/principals have been allowed to exercise their influence, most of the time for good and without causing policy rifts, but occasionally in a manner that has caused tension because they have insisted on a shake-up. These instances notwithstanding, KWS has benefitted from its international exposure. Compared to many other government agencies, it has shown respect for professionalism and displayed a cosmopolitan perspective that makes Kenya looks good in the eyes of other countries. Sustaining this good-will is an important part of ensuring that KWS can continue to do its work well. External funding has been used for the whole range of KWS functions although it is the support of research that has been given foremost publicity. For example, it has carried out joint research with the World Wildlife Fund on the Mara River-Serengeti ecosystem and with other international partners on the management of the Mara River and the restoration of the Mau Forest, an important water resource as well as biodiversity site. Research may be viewed as a “soft” instrument for exercising influence, but it is nonetheless an important tool, especially in sectors where the policy issue has global dimensions and there is a lack of local funding for such research. Years ago, there was quite an open disagreement between African governments and international donors on conservation issues because the latter was accused of favouring care of animals over human beings. Such claims were never quite true and its shadow over principal-agent relations has faded into the background. The Agent Motivation Challenge One reason why principal-agent relations may deteriorate is frustration among the latter (Widmalm 2016). Using Albert Hirschman’s conceptualization, employees in an organization can use one of three options to act in case they face any issue with their employer (Hirschman 1970). The first is to voice their opinion in the hope that it can be amicably resolved through reasoning. A second option would be to endure the problem and

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for reasons of fear such as losing one’s job, show loyalty. A third would be to exit, that is, “vote with one’s feet” and resign. These are common issues in any organization, but they move centre stage wherever funds are insufficient, and it is forced to just scrape through. In a country with a high level of unemployment, not the least among the younger generation, holding on to one’s job becomes a priority. The situation favours the loyalty option. Loyalty, however, is not likely to be an incentive to do better. The employee will be inclined to do what is minimally necessary to retain the job rather than excel in performance. Research for this chapter indicated that where KWS staff were involved with local communities, members believed that KWS personnel did care less about biodiversity than themselves. For example, community members around Lake Nakuru expressed their disappointment by pointing to a lack of staff interest in the benefit-sharing project they had helped start. There are also incidents where staff have breached their contract and opted for exit by fleeing acts of financial misappropriation—or even worse, doing so by collaborating with poachers to make a quick and large financial gain (Gitau 2019). It is not clear how common this practice is but, for example, on 23 July 2019, according to a Kenyan television station, K24TV, five KWS staff were arrested in Mombasa for aiding a poacher to escape. Poachers are often pastoralists who give up herding their own animals to hunt elephants and rhinos for their high-priced ivory. The fact that the government has taken extraordinary measures in recent years to combat poaching is indicative of its concern. The main problem, however, does not seem to be to apprehend the KWS staff who collaborate with poachers but rather to get them indicted. The process has been slow and there seems not to be enough political will in government to proceed with their cases (The Guardian, London, 30 May 2016). While exit and loyalty in the contractual relationship are problematic, voice is potentially the constructive option. Realizing it requires an open atmosphere and, figuratively speaking, a high ceiling. Public institutions in Kenya are not known for being participatory but rather quite strictly hierarchical, a feature that tends to quell creative forms of deliberation. It can be argued that as a law enforcement agency, KWS must rely on compliance with hierarchical orders although such a culture runs into conflict with those who have joined because of their professional commitment to the biodiversity cause. In short, it is difficult in an agency like KWS with such a varied mandate to develop an organizational culture that appeals to everyone. It may still be necessary to live with such a sub-optimal

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arrangement given that splitting it up into more specialized entities creates its own management problems. The Agent-Community Relation Community involvement is an important ingredient of Kenya’s wildlife policy. It rhymes with the objectives of the new constitution and it aligns with the philosophy of its many international partners. As indicated in Table  8.1, KWS relates to local communities and other stakeholders in two main ways: (1) strengthening community involvement through setting up conservancies and benefit-sharing schemes, and (2) education and awareness-raising. My own research and that of others suggest that the contribution that KWS has made is variable and can be summarized as follows: (1) it seems to have been more successful in its educational role than in its effort to jointly manage projects; (2) its own role has been overshadowed by partner institutions like the WWF; (3) it has had difficulty developing good relations with county governments; and (4) it has been short of resources to perform its role to the full. The latter has been a constant factor causing KWS to fall short of its policy mandate. The resource deficit has been especially hard in doing its work of involving local stakeholders. It has found itself unable to stretch its scarce finances to consistently support community involvement. It has been obliged to partner with international or local NGOs which thanks to their own external funding often have been better endowed to do the work and claim the credit. Such was the case in the Nakuru and Naivasha Lake areas where respondents in my research gave credit to other actors with which KWS presumably was cooperating. In Narok County, not surprisingly, where funding of the MMNR is provided by the local county government, the role of KWS was viewed as minimal in conservation. Much the same was found in the Arabuko-Sokoke forest reserve, home of the Kipepeo project. Research by Ogutu and his colleagues (2016) confirms that credit for success in community conservation typically lies with actors other than KWS and very often, the community itself. Where KWS receives some credit, it refers to its awareness and education efforts. Especially notable in my research was the awareness of poaching issues shown by respondents living near Nairobi’s Jomo Kenyatta International Airport, the Port of Mombasa, and Namanga (the border town with Tanzania) which are known as places where smuggling of ivory takes place.

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The difficulty that KWS has encountered in developing constructive relations with communities is not unique or surprising. Bureaucracies are generally not well suited for participatory policymaking because of being caught in their own dynamic. Officers find it hard to appreciate and understand other criteria than those built into their own implementation model. The “bottom-up” approach gets lost in its perspective on the policy process (Hudson et al. 2019). Success stories of agent-beneficiary relations are rare. One of the few biodiversity examples in Kenya is on the Indian Ocean coast where Kilifi and Malindi county governments linked multiple stakeholders, including parastatals, NGOs, and the local communities into a benefit-sharing project to manage the coastal and marine ecosystem on Wasini Island (Irandu and Shah 2014).

Policy Results Despite lacking resources and irrespective of its own institutional shortcomings, KWS can point to a record of which most of its counterparts in the Kenyan government (or other African governments, for that matter) would be envious. It can point to at least two conspicuous achievements. One is the significant decline in poaching elephants, the second being the expansion of rangelands for wildlife. To be sure, these results have generally been achieved after the government or other principals have “pushed the button” for improvement in performance. Even so, the outcome could perhaps have been even better, but with a multiple and wide mandate in combination with a volatile policy context, it would be unrealistic to expect an optimal outcome. This final section will identify the most important aspects of the implementation of the 2012 Wildlife Policy. The achievements are summarized in Table 8.2. Implementation of the 2012 Wildlife Policy has been in line with the CBD objectives which call for documented evidence on an annual or biannual basis and it has adhered to the IUCN “Red List” criteria of threatened, vulnerable, and endangered species, as confirmed in the most recent scientific document produced by the KWS—the National Wildlife Conservation Status Report 2015–2017 (Republic of Kenya 2018). Information obtained from the African Elephant Database indicates that the elephant range in Kenya declined from 135,096  km2 in 1995 to 112,998  km2 in 1998 (Sitati 2003), reaching its lowest point of 107,113 km2 in 2007 before bouncing back up in 2013 to 111,423 km2

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Table 8.2  Summary of KWS implementation of the 2012 Wildlife Policy Policy concern

Implementation mechanisms

Examples of success

Conserving, maintaining wildlife population Ecosystem and habitat management

Expanding rangelands for wildlife and creating wildlife corridors

Laikipia, Narok, Taita-Taveta

Integrated ecosystem management plans and threat identification Joint ventures in wildlife conservation and management such as local conservancies Research and population censuses

Aberdares, Amboseli, Arabuko, Lake Nakuru and Elementaita, Samburu-Isiolo Laikipia, Narok, Taita-Taveta, Ol Pejeta Nanyuki

Wildlife protection outside protected areas Monitoring wildlife populations Community involvement Awareness-raising

Local conservancies and benefit-sharing projects Educating youth about the multiple values of biodiversity

Research and census reports issued by KWS Arabuko Forest, Kipepeo Project Wildlife Clubs of Kenya, Elsamere, KWS Training Institute

Source: Author

(Weru 2016). Setting up conservancies has been one way to increase these rangelands as indicated by the success of Ol Pejeta Conservancy in Nanyuki. Another positive outcome to which KWS can point is the now free movement that some 300 elephants have access to in the Laikipia-­ Samburu region thanks to the establishment of a wildlife corridor supported by local conservancies. Another success story would be the Arabuko-Sokoke forest project where KWS, together with the country’s Forest Service, has been instrumental in protecting a growing elephant population while also supporting the Kipepeo project (ASFMP 2002; KWS 2012). Less spectacular yet equally important has been the development of strategic management plans for the protected sites and their adjacent lands. Such support includes the Lake Nakuru Elementaita Management Plan, 2012–2017; the Samburu-Isiolo Conservation Plan, 2010–2020; the Aberdares Ecosystem Management Plan, 2010–2020; the Amboseli Ecosystem Management Plan, 2008–2018 and 2020–2030; the MMNR Management Plan, 2009–2019; and the Arabuko-Sokoke Strategic Forest Management Plan, 2002–2027. The Arabuko-Sokoke Forest is an especially relevant case study of the positive impact of the use of

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creative implementation mechanisms. In this instance, implementation involved vigorous partnerships with KFS, Community-Based Organizations (CBOs) and NGOs. For example, Nature Kenya has been working with the KFS and KWS in training personnel around Arabuko to reduce threats to the forest from illegal logging and waste disposal (NMK et al. 2005). Achievements like this are not easy since both scientists and rangers are used to their own legal autonomy.

Conclusion A single case does not lend itself to making recommendations, but it does give room for learning lessons. Here are the main points for the “busy practitioner” to take away from the study of KWS. As agents, civil servants are not in charge of their own destiny. This case shows that their role in policymaking becomes complicated for at least four reasons. The first is that the government does not always speak with one voice: ministries overlap, and jurisdictional conflicts arise; government activities are funded from external sources that claim influence and accountability. The more high-­ profile the government institution is, the greater such pressures get. The second is that bringing multiple tasks under one roof raises the risk of a management overload that is not alleviated merely by training. This is especially true in an agency like KWS where functions vary widely from law enforcement to research and education. To this should be added that in such a multi-functional environment it is difficult to build a coherent and creative organizational culture. The third point is that civil service rules make effective outreach difficult. These rules emphasize internal institutional functions and take for granted that the agency is autonomous and act accordingly. In the post–2010 Constitution context in Kenya, however, civil servants are being asked to “bend over” and reach out to the public. Getting citizens involved in policy processes driven by government ministries is a challenge that civil servants, even in a field-oriented agency like KWS, still must learn to address. They find it hard to display the same flexibility and passion that NGOs can mobilize to get people involved. The fourth point is that although executive agencies and state corporations were created to make the public service more efficient and effective, the KWS case shows that sluggishness easily creeps into organizations that rely on routinized practices. This becomes a problem, especially in a dynamic or ambiguous policy environment. The result is the occasional need to “shake it up” to provide space for a fresh start. The KWS case suggests that its policy development occurs

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in the form of “punctuated equilibrium”, that is, with spikes of energy amidst periods of everyday bureaucratic practice (Baumgartner and Jones 2002).

References Ansell, Christopher, Eva Sørensen, and Jakob Torfing. 2017. Improving Policy Implementation Through Collaborative Policymaking. Policy and Politics 45 (3): 467–486. ASFMP. 2002. Arabuko Sokoke Strategic Forest Management Plan 2002–2027. Watamu: A Rocha Kenya. Baumgartner, Frank R., and Bryan D. Jones, eds. 2002. Policy Dynamics. Chicago: University of Chicago Press. Braithwaite, Jeffrey, Kate Churruca, Janet C.  Long, Louise A.  Ellis, and Jessica Herkes. 2018. When Complexity Science Meets Implementation Science: A Theoretical and Empirical Analysis of Systems Change. BMC Medicine 16 (63) https://doi.org/10.1186/s12916-­018-­1057-­z. CBD. 2010. Global Biodiversity Outlook No 3. Montreal: Convention of Biodiversity Secretariat. Dye, Thomas R. 2013. Understanding Public Policy. Boston, MA: Pearson. Gazley, Beth. 2017. The Current State of Interorganizational Collaboration: Lessons for Human Service Research and Management. Human Service Organisations: Management, Leadership and Governance 41 (1): 1–5. Gitau, Bernard. 2019. Balala Warns KWS Team Over Claims of Sh1 Billion Misuse. People’s Daily, December 10. Hirschman, Albert O. 1970. Exit, Voice and Loyalty: Responses to Decline in Firms, Organizations and States. Cambridge, MA: Harvard University Press. Howlett, Michael. 2018. Moving Policy Implementation Theory Forward: A Multiple Streams/Critical Juncture Approach. Public Policy and Administration 34 (4): 405–430. Hudson, Bob, David Hunter, and Stephen Peckham. 2019. Policy Failure and the Policy Implementation Gap: Can Policy Support Programs Help? Policy Design and Practice 2 (1): 1–14. Hupe, Peter L. 2014. What Happens on the Ground: Persistent Issues in Implementation Research. Public Policy and Administration 29 (2): 164–182. Hupe, Peter L., and Michael J.  Hill. 2016. And the Rest Is Implementation. Comparing Approaches to What Happens in Policy Processes Beyond Great Expectations. Public Policy and Administration 31 (2): 103–121. Hyden, Goran. 1973. Efficiency Versus Distribution in East African Cooperatives. Nairobi: East African Literature Bureau.

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Ilott, Oliver, Joe Randall, Alex Bleasdale, and Emma Norris. 2016. Making Policy Stick: Tackling Long-Term Challenges in Government. London: Institute for Government. Irandu, Evaristus and Parita Shah. 2014. The Role of Ecotourism in Promoting Women Empowerment and Community Development: Some Reflections from Kenya. Journal of Tourism and Hospitality Management 2 (6): 245–259. Institute for Government/Chartered Institute of Public Finance and Accountancy. 2017. Performance Tracker: Autumn 2017: A Data-Driven Analysis of the Performance of Government. London: Institute of Government. Johansson, Staffan. 2010. Implementing Evidence-Based Practices and Programmes in the Human Services: Lessons from Research in Public Administration. European Journal of Social Work 13 (1): 109–125. Kilonzi, Titus M., and Charles N.  Ndung’u. 2014. Challenges Affecting Implementation of Vision 2030 Strategic Decisions in the Public Sector in Laikipia County, Kenya. Public Policy and Administration Review 2 (2): 77–93. KWS. 2012. Annual Report 2012. Nairobi: Kenya Wildlife Service. McNeill, Charles, and Peter Shei. 2002. A Framework for Action on Biodiversity and Ecosystem Management. New  York: WEHAB Working Group, World Summit on Sustainable Development. Ministry of Tourism and Wildlife. 2018. National Wildlife Strategy 2030. Nairobi: Ministry of Tourism and Wildlife, Kenya. NMK, NEMA, KWS, KFS, Nature Kenya, Royal Society for the Protection of Birds (RSPB) and Birdlife International and Darwin Initiative. 2005. Kenya’s Important Bird Areas: Status and Trends. Nairobi: Nature Kenya. Norris, Emma, Marc Kidson, Petr Bouchal, and Jill Rutter. 2014. Doing Them Justice: Lessons from Four Cases of Policy Implementation, 19. London: Institute for Government. OECD. 2015. Delivering from the Centre: Strengthening the Role of the Centre of Government in Driving Priority Strategies. Paris: OECD. Ogutu, Joseph O., Norman Owen-Smith, Hans-Peter Piepho, and Mohamed Y. Said. 2011. Continuing Wildlife Population Declines and Range Contraction in the Mara Region of Kenya During 1977–2009. Journal of Zoology 285: 99–109. Ogutu, Joseph O., Hans-Peter Piepho, Mohamed Y. Said, Gordon O. Ojwang, Lucy W.  Njino, Shem C.  Kifugo, and Patrick W.  Wargute. 2016. Extreme Wildlife Declines and Concurrent Increase in Livestock Numbers in Kenya: What Are the Causes? PLOS ONE 11 (9): e0163249. Republic of Kenya. 2010. The Constitution of Kenya. Nairobi: Government Printer. ———. 2012. The Draft National Wildlife Conservation and Management Policy. Nairobi: Government Printer. ———. 2017. The National Wildlife Conservation and Management Policy. Nairobi: Ministry of Environment and Natural Resources.

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———. 2018. The National Wildlife Conservation Status Report 2015–2017. Nairobi: Kenya Wildlife Service. Shah, Parita. 2016. Domestication and Implementation of Biodiversity-Related Multi-lateral Agreements in Kenya. Unpublished Thesis, University of Nairobi. Shah, Parita, and Elias Ayiemba. 2019. Convention on Biological Diversity and Rural-Urban Connections with reference to Kenya. International Journal of Research in Environmental Studies 6 (2): 14–26. Sitati, Noah W. 2003. Human-Elephant Conflict in Transmara District Adjacent to Maasai Mara National Reserve. PhD Thesis, University of Kent, Canterbury, UK. Spicker, Paul. 2006. Policy Analysis for Practice. Bristol: Polity Press. Swiderska, Krystyna, Dilys Roe, Linda Siegele, and Maryanne Grieg-Gran. 2008. The Governance of Nature and the Nature of Governance: Policy That Works for Biodiversity and Livelihoods. London: International Institute for Environment and Development. UK National Audit Office. 2013. Over-optimism in Government Projects. London: NAO. United Nations. 2002. A Framework for Action on Biodiversity and Ecosystem Management. New York: WEHAB Working Group. Volcker, Paul A. 2014. Vision Without Execution Is Hallucination. Public Administration Review 74 (4): 439–441. Walker, Paul. 2007. Contracts, Entrepreneurs, Market Creation and Judgment: The Contemporary Mainstream Theory of the Firm in Perspective. Journal of Economic Surveys 29 (2): 317–338. Weru, Sam. 2016. Wildlife Protection and Trafficking Assessment in Kenya: Drivers and Trends of Transnational Wildlife Crime in Kenya and Its Role as a Transit Point for Trafficked Species in East Africa. Cambridge: TRAFFIC. Widmalm, Sten. 2016. After NPM, Curb Your Enthusiasm for the Principal-Agent Theory. Statsvetenskaplig tidskrift 118 (1): 127–144. Williamson, Oliver E. 2000. The New Institutional Economics: Taking Stock, Looking Ahead. Journal of Economic Literature 38 (3): 595–613. Xinhua. 2019. http://www.xinhuanet.com/english/2019-12/31/c_ 138669901.htm

CHAPTER 9

Public Accountability: State-Society Relations in Kenya Gedion Onyango

Introduction Public accountability is one of the cornerstones of democratic governance. Such systems rest on the undisputed premise that the exercise of power is a right that citizens as overall principals have delegated to their government that act on their behalf as an agent. In response, the latter is mandated to act in the public interest. This is the contractual basis between the state and society for public accountability. This social contract between citizens and their government, however, does not always work as intended. Citizens may not demand their rights, institutions may make access difficult or impossible, and government leaders may not be responsive. These are issues that countries across the world have encountered as part of building their systems of democratic governance. In Europe and North America, countries have had plenty of time to get these systems in place and reach a democratic equilibrium. It is to become like these fully

G. Onyango (*) Department of Political Science and Public Administration, University of Nairobi, Nairobi, Kenya e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 G. Onyango, G. Hyden (eds.), Governing Kenya, https://doi.org/10.1007/978-3-030-61784-4_9

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developed democracies that African countries are aspiring. In doing so, however, they face a series of challenges. They must democratize in a hurry; they need to do so without a domestic legacy of democratic governance, and they lack the socio-economic foundation on which democracy emerged in Europe and North America. This chapter examines how public accountability works in Kenya and the challenges it faces in reaching a democratic equilibrium and the implications on public policy processes. This set of issues is increasingly important for Kenyans in the light of the democratic promises made in the 2010 Constitution and following the recent debates on how to amend the same constitution. Is there evidence of progress and, if so, in what respects? What is still the accountability deficit? In addressing these questions, the chapter begins by offering a brief introduction to the main concepts and functions of accountability and the ways that the Kenyan political system is organized for public accountability purposes. A second section will highlight how public accountability functions in practice. It concludes with an overall assessment and discussion of what still needs to be done to make public accountability work for better public policy practice.

Main Types and Functions of Public Accountability Public accountability is about organizing state-society relations to ensure that the public interest is not ignored. It is usually portrayed as a social contract between citizens and government, building on the legacy of seventeenth-­century theorists, notably John Locke. Public accountability is conventionally divided into two main forms: vertical and horizontal. The first refers to how citizens hold government accountable by transferring their sovereignty to popularly elected representatives or ministers who, in turn, delegate legal authority to civil servants to act in the public interest (Bovens 2007). The horizontal version describes how branches of government internally check each other. This form of accountability combines facets of political, legal, and administrative or bureaucratic accountability depending on the forum of accountability engagement and actors involved (Bovens 2007). In recent decades two types of accountability have also been added to complement the original duo. Reflecting the growing complexity of policymaking, one type is referred to as social accountability. The concept calls attention to citizen inputs in the form of collective action to hold officials accountable, for example, in the context of policymaking and implementing specific policies (Hupe and Hill 2007).

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The second additional type, diagonal accountability, refers to the growing use of independent organs, such as the Auditor-General and the Ombudsman, and Anti-Corruption Agencies, to strengthen the accountability of actions that may be legal but administratively questionable or wrong. The various types are illustrated in Fig. 9.1. Mainly concerned with controlling governmental power to ensure responsiveness, vertical accountability has both formal and informal dimensions (West 2004). This facet of public accountability serves five functions: (1) to enable the public to call those holding public office to account, hence the term “public accountability”; (2) to serve as a deterrent to abuse of power and malfeasance; (3) to keep the agents “on their toes” to ensure good performance; (4) to promote public acceptance of the legitimacy of government action; and (5) to enable citizens to access information, voice their opinion, and demand accountability between elections (Paul 1992). Vertical forms of accountability tend to be more difficult to put into practice because they are multi-faceted and involve both geographic and social distance that makes them hard to fully use. This is especially true in African countries where there is no tradition of civic participation to hold government leaders accountable  and where

Vertical

Diagonal

Horizontal

Social

Fig. 9.1  Types of public accountability. (Source: Author)

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the  large-scale collective action in forms of organized private  actors or Civil Society Organizations are relatively weak. It is the main reason why vertical accountability is usually exercised informally through political patrons or other traditional leadership institutions  and their ability to deliver tangible goods that benefit the local community. The horizontal type is deliberately organized as a “three-person game” to avoid that the separation of power turns into a polarizing battle. The judicial branch of government is intentionally empowered to serve as an arbiter between the executive and legislative branches. Such arbitration is considered a prerequisite for the pursuit of democratic governance, a point that becomes especially relevant in African countries which are organized along ethnic and religious lines and where the scope for constructive policy compromises tends to be more constricted than in societies organized along lines of social class. This issue, however, is not confined only to the African continent as both European countries and the U.S. are increasingly facing racial, ethnic, and religious tensions. For example, in the U.S., President Trump has worsened these tensions by whipping up nativist sentiments among segments of the white population. In pursuing such a policy, he has violated the principles of the three-person game by using his power to attack the judiciary for claiming that what he does is unconstitutional. In Kenya, like most African countries, such incidences are hardly unique in the way the executive has been conducting its business over the years. Independent bodies like the Ombudsman and Auditor-General add another layer of public accountability. The rationale for this diagonal accountability is that it covers issues that are not in the purview of the legislature or the judiciary. The Audit Office focuses on the financial propriety of the other branches of government and is meant to identify individuals or offices that have misused public funds. The Auditor-General is appointed by the legislature and is meant to enjoy enough autonomy and capacity to remark on improper or questionable use of public funds. The Ombudsman office is an appeals body that citizens can use when individual officials or government institutions may have acted in a manner that infringes on their rights. An example would be when the government, to build a major infrastructural project, uses its “eminent domain”, that is, power to force private owners of land and physical capital to move without a form of compensation that corresponds to market value. The Ombudsman office, therefore, takes on cases that may otherwise require more investigations into the conduct of public officers and their agencies, and where the

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courts may not be in the position to offer the needed action to promote administrative ethics or accountability. The Kenyan Constitution establishes constitutional commissions (or Chapter 15 Institutions) to which citizens can direct their complaints. These include (1) Commission on Administrative Justice (CAJ), the Kenyan version of the Ombuds Office, (2) Kenya National Human Rights Commission (NHRC), (3) Gender and Equality Commission (GEC), (4) Ethics and Anti-Corruption Commission (EACC), (5) National Cohesion and Integration Commission (NCIC), and (6) Independent Policing Oversight Authority (IPOA). With these bodies in place, the Kenyan Constitution offers an array of opportunities for citizens to check their government and its many agencies. In this respect, Kenya has, in theory, a more refined public accountability system than most African countries. Social accountability has become more important as policy theorists have placed greater weight on popular participation in the policy process. It is less about organizing state-society relations than it is about policy effectiveness. It is especially relevant for allowing citizen input into policy implementation and evaluation. It is a best practice among international organizations serving as development partners in African countries and to the extent that governments accept it, social accountability through participatory governance mechanisms is an increasingly standard feature of how policy is designed for greater effectiveness. It does not necessarily mean that citizen input becomes an essential component of the policy process. Acting on behalf of the state and following their bureaucratic rules, civil servants have little incentive to take the views of citizens seriously in designing policy. When it happens, it still tends to be exceptional. Table 9.1 below summarizes main features of accountability types.

Table 9.1  Main features of the main forms of public accountability Feature/type Vertical

Horizontal

Diagonal

Social

Principal Electing aim representative Principal act Voting

Separation of power Check on power exercise Financial autonomy

Checking public acts/behaviour Launching appeal and complaints Impartiality

Checking policy Citizen action

Principal resource Source: Author

Knowledge of candidates

Civic competence

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These four types of public accountability are interlinked. In a developed system of democratic governance, they ideally reinforce each other to provide public space for citizens to be part of the policy process. As such, they provide opportunities for members of the public to participate in such key activities as problem identification, policy formulation, policy implementation, and policy evaluation—even the actual decision-making in some instances. Policy sectors, however, vary in importance to the government and it is easier for these principles to be realized in social development than in sectors that are more sensitive such as home affairs or public finance management. Nonetheless, wherever these four types of public accountability are reinforcing each other, the greater is the prospect for policymaking to be conducted in the public interest as defined by the citizens of the country. The current system of public accountability in Kenya is illustrated in Fig. 9.2. Executive

Legislature

Judiciary

Civil service

CAJ

NHRC

EACC

GEC

NCIC

IPOA

47 County Governments

CITIZENS

OF

KENYA

Fig. 9.2  The public accountability system in Kenya after 2010. (Source: Author)

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Compared to other African countries, Kenya is privileged to have a home-grown constitution that is meant to foster democratic governance. Although the ability to take full advantage of it remains a challenge, the 2010 Constitution provides citizens with leverage that is difficult to ignore because those in power are among the “founding fathers”. Thus, if the state fails to live up to its role as duty-bearer in a human rights context or its role as an agent of the people of Kenya—the principal—there are political costs associated with such violations that do not arise in other African countries where the level of civic consciousness remains low. Kenya has set itself higher expectations for how to be governed which means that any discrepancy between promise and practice gets public notice quite easily. With a decade of experience since the new political order was first adopted, the next section will examine public accountability in practice more closely.

Public Accountability in Practice Like elsewhere in Africa, the path to democratic governance in Kenya has been an exercise in overcoming the legacy of a dominant executive branch. It all began in colonial days, but it was not reversed at independence. Although the struggle for independence was about extending civil and political rights to the whole population in the colonies, once nationalist leaders took over, they abandoned the democratic ideals that had helped them to gain independence. It is too simple to argue that this reversal was just an act in their self-interest. They did indeed face real problems of governance as the political instability across the continent in the first couple of decades after independence indicates. Colonial officials had been able to govern their multi-ethnic territories by virtue of being outsiders. African nationalists did not have such a “luxury”. Rising above parochial identities was not easy at a time when every ethnic group was pushing for its share of power. Even though Kenya was a little more economically developed than its neighbours in East Africa, the leading political parties were not based on policy positions. The battles between a “socialist” Oginga Odinga and a “capitalist” Jomo Kenyatta reflected their respective positions in the Cold War between the East and the West. As a powerful leader of the trade union movement at the time, Tom Mboya never succeeded in making genuine ideological inroads in Kenyan politics and was side-lined by the rivalry between Kenyatta and Odinga before his sudden assassination. Since the early days of independence, therefore, Kenyan politics has been foremost a matter of holding the country together. The holding of

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the country together, however, has been mostly led by or appended on elite-based negotiations or responses and initiatives towards popular struggles for political change. The executive has been able to lay sole claim to the “public interest” interpreting it to be based on threats to the country’s national security. This challenge to security has indeed been real in Kenya both from within and from outside, which has given the president and his cabinet in power an excuse to act in a discretionary and sometimes outright repressive manner even if it may not have been warranted. This legacy probably reached its peak in the one-party days, but regime maintenance persists to this day as an excuse for unconstitutional acts by the government. The challenges that remain in the battle for more democratic forms of governance in Kenya can be summarized in four types: (1) separation of power, (2) competition over state power, (3) transparency of public action, and (4) integrity of public officials. These are the results of a combination of structural and behavioural factors. Like other African countries, Kenya tries to combine national unity with citizen participation by having a constitution that is at the same time both presidential and parliamentary. Such a hybrid construct may be an attempt to get the “best of two worlds” to meet the governance challenges of the country but a system like that leaves loopholes that a “pure” presidential or parliamentary version does not. For example, the presidential system is based on the separation of power, but the parliamentary is not. Its organizing principle is majority rule. Because of the ways public accountability is structured in this hybrid fashion in Kenya, it is no surprise that interpretation of the formal institutions of governance is ambiguous and informal practices sneak in that undercut the intentions of the constitution. Thus, human beings are also to blame. First and foremost, those who have been elected leaders take advantage of the power they have been delegated by the people, forgetting that they have a mandate to serve the public interest as a civic and not national security matter only. Second, people in Kenya may not see their engagement in public policy matters as important demonstrating either a problematic citizenship or one that is not matching the recent democratic organization and values of the state in Kenya. As Logan and Bratton (2010) argue using data from the Afrobarometer survey of some 20 African countries including Kenya, Africans do indeed exercise their right to vote but they are not citizens in the sense of adequately participating in other civic activities. They tend to leave these rights in the hands of well-placed representatives of their respective communities who, in their capacity as political patrons or community leaders, exercise power over groups of free riders (Wantchekon

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2003). The result is what is referred to as “electoral authoritarianism”, a concept that captures the type of practice that evolves in these circumstances (Morse 2012). The world of governance beyond their locality is essentially unknown territory for most community members and the incentives to get involved in exploring it are too low to make it worthwhile. Such is the prevailing condition in Kenya in which the public interest as defined in public policy is being pursued. Separation of Power The doctrine of power separation is predicated on respect for the autonomy of each branch of government. They all exercise power on behalf of the people, but they are intentionally expected to hold each other in check by staying within the legal mandate that the constitution gives them. Upholding such an equilibrium is not easy as the U.S. experience illustrates, most recently in the example of President Trump denigrating the role of the judiciary because of deciding that some of his policies are unconstitutional. This disrespect for the integrity of other branches of government has manifested itself in different ways in Kenya, for example in how the state interferes with constitutional commissions and independent offices as well as the judiciary and the legislature (Odhiambo-Mbai 2003). More specifically, the executive has been trying to arm-twist the Independent Electoral and Boundaries Commission (IEBC) by approving only those nominees that are friendly to the government. The result is that IEBC has performed just minimally in enforcing electoral laws and holding political parties accountable. Furthermore, like so many other of these commissions, its management is hampered by political wrangles, underfunding, and micro-­ management tendencies among its commissioners (IEBC Kenya 2018). Besides dealing with the dominance of the executive, some of the key challenges that the Independent Offices, Constitutional Commissions and other two branches of government face are legal ambiguities, resource constraints, lack of skilled personnel, high staff turnover, and political or kinship rather than meritocratic criteria for appointments. Some of the challenges they face is by design, others by default. For example, agency management is slow to learn from experience and in some cases are outright resisting change in values and orientation. Political onslaughts against some of these agencies, notably the IEBC based on highly contested Presidential election results and the EACC based on the continued

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prevalence of corruption, mean that many Kenyans distrust their ability to be autonomous and impartial. These two institutions that are at the core of exercising public accountability engender most complaints and calls for an overhaul. Although political and administrative changes typically take time to implement, the new constitution has made Kenyans more impatient for more legitimate forms of governance. The media are also playing their role in sustaining this demand. The exchanges between the IEBC and Wanjiku Mwananchi1—the anonymous blogger—are especially powerful illustrations of how this impatience plays itself out in public discourse. Commentators participating in this consciousness-raising effort are caught between trying to demystify the milestones that Kenya has made towards deepening public accountability, on the one hand, and underscoring, on the other, existing deficits and how to tackle them. One of the remaining challenges is that the Chapter 15 institutions, the Judiciary, as well as the legislature need to assert their authorities or fight for their independence from the executive that over the years has mastered how to co-opt them. Without a change in behaviour in these key institutions, the existing constitutional mechanisms for testing the checks and balances in the public accountability system will remain untested, unlearned, and unmastered. The debate about reforms, therefore, should also focus on what mechanisms are needed to further reduce the executive powers over these critical institutions. It should look less into what needs to be changed and more at what needs to be done to master and strengthen existing public accountability institutions. At present, the separation of powers is the primary source of dysfunctionality in Kenya’s system of governance. Instead of helping to create a jurisprudence that will guide relations for the future, the branches of government tend to engage in “wars of supremacy” as has been the case in exchanges between the executive and the judiciary. Reflecting the ire that the nullification of the 2017 presidential election result caused in the incumbent Jubilee government, the Judiciary has been the target of interventions by the executive branch that can only be interpreted as acts of revenge. The autocratic political culture that still prevails in political circles in Kenya is ill-suited for the practice of rule of law. Even though the 1  Wanjiku is a feminine Kikuyu name that is used to symbolize the ordinary person in Kenyan politics. Wanjiku was coined by the former president Daniel T. Arap Moi in dismissal of calls for a new constitution. He said, “Do you think Wanjiku Understands what is a constitution?” Since then the name has continued to be used eminently in caricature.

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Judiciary in comparison to other oversight institutions, especially the legislature, has performed relatively well in asserting its authority and independence, it continues to be under threat from the executive branch. Especially imminent is the financial “hammer” that the Treasury holds over institutions such as the Parliamentary Service Commission and the Judicial Service Commission which regulate how these two branches are working and who are recommended to the President for appointment to key positions of leadership (see Ogemba, 5 November 2019). Who is appointed to these key positions is often determined more by personal connections than formal merit. The tendency for the President is to appoint someone likely to be compliant with his agenda. The current Chief Justice has publicly refused to “co-operate” with the Executive in ways that would turn the Judiciary into a “rubber-stamp” body. The previous Auditor-General was also allegedly disliked by the executive for the same reason of wishing to uphold the impartiality of the office. It is clear that being effective in promoting the rule of law in Kenya is a sensitive balancing act between being an “insider” yet able to speak out to power. The public space for doing so is still very narrow and few individuals can perform this role satisfactorily. Yet, it is precisely that kind of public servants that Kenya needs to make public accountability a reality. That is why upholding the functional principles of the separation of power such as the independence of the judiciary is an important test of the 2010 Constitution and its authority to lead the way towards constitutionalism and the rule of law. Kenyans want to see it to believe it and in the context of the current regime, it appears a tough, if not insurmountable challenge (Onyango 2017). Competition Over State Power As a modernizing middle-income country, Kenya is increasingly taking on some of the features of developed societies. The country is becoming more and more socially differentiated and stratified. The rural areas are no longer just made up of farmers. The economy of even outlying areas is driven by a growing number of occupational pursuits. The country is also displaying growing differences in wealth—and thus political power. The difference with developed countries, however, is that political parties are not organized around specific interests. There is no “Labour Party”, no “Liberal Party”, even no “Conservative Party”. Kenya continues to be organized like other African countries based on “communities of

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consumption”, that is, ethnic groups that compete for access to state power and control of the public purse that follows (Hyden 2008). Positions taken on specific public policy issues are a secondary matter because they play a minor role in attracting supporters. Their manifestos are typically very general and with minimal exception mimic the bland statements contained in international development strategy documents. This is a structural weakness in the party system that not only undermines public accountability but also limits the extent to which public policy becomes central to what political actors devote their attention. In this kind of political order, political negotiations are primarily about who is an insider and who is not. Being on the inside is preferred because it provides access to state resources and serves as proof of power. That is why a majoritarian approach to decision-making prevails. It gives the insiders the power to motivate others to join, hence the tendency in Kenyan politics to co-opt or “buy” the support of others who may add to the political weight of the elites already in power. “Playing politics”, therefore, is the lifeline for elected representatives. Their responsibility for developing public policy comes only second as reflected, for example, in the little attention that is paid to committee work in the legislature. These committees should be forums for reflective and deliberative decision-­ making, where legislators, therefore, can adopt informed opinions as opposed to merely parroting the parochial or blend positions of their parties. Existing procedures, however, do not require deliberation or evidence of what was discussed. The search for a consensus, however, is not easy when policy issues serve a limited role in the overall operations of how public accountability is practised. The inclination to confine the vote to a majority decision, therefore, is great. How committee deliberations should be reported and how the public must be notified and informed about the content of its decision are regulated in existing statutes, but they are not always followed in practice. This partly explains the growing tendencies and incidences of court orders to ensure the constitutionality of these decisions. As Kenya continues to develop and acquire the features of modern society, policy issues may take on greater significance in how public accountability is practised but to be fully functional such a system would require political parties that compete with each other based on ideals rather than identity, as the Building Bridges Initiative (BBI) Task Force Report (2019) also highlights.

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Transparency of Public Action Transparency of public action is central to institutionalized governance practice in developed democracies. In contrast, the pervasive feature of governance in African countries is the lack of it. The reason for this deficit in openness has both a structural and a cultural dimension. It is systematically resisted by the ruling elites. The latter are finding institutional methods to ensure that what state actors do remains hard to know. One such method is to destabilize institutions, another to create shared mandates between institutions. Both serve the purpose of mystifying or confusing the public about what has been decided and who is ultimately accountable for a specific policy decision. This applies to such key institutions as the Commission for Administrative Justice, the Ethics and Anti-Corruption Commission, and the Auditor-General (Onyango 2019b). In addition to these measures to constrain transparency, there are also differences in understanding public accountability. For many Africans, it is trust rather than transparency that matters most. They prefer to know whom they are dealing with. The result is that they tend to fall back on a local leader whose personal qualities they know and therefore are ready to trust to act in their interest. It is mainly in the already modernized urban environment where people do not know each other that the principle of transparency becomes important (Hyden 2012). In the 2010 Constitution, transparency in public action is primarily channelled through (a) participatory frameworks of decision-making in public policy processes, (b) collaborative and complementary organization of accountability institutions, and (c) civil society organizations such as Transparency International and Katiba Institute. The enforcement of Public Finance Management (PFM) as an instrument of public accountability is an illustration of the challenges that exist in securing transparency in a complex institutional environment. PFM regulations work in combination with the Anti-Corruption and Economic Crimes Act (ACECA) of 2003, the Commission on Administrative Justice Act of 2011 and the Leadership and Integrity Act (LIA) of 2012 to enhance clarity in a sector where financial responsibilities have for a long time been blurred. This shortcoming has prevailed in large part because of the inability of legislative institutions to compel administrative action against wastage, unequal distribution, and misallocation of resources in different policy sectors in Kenya. These challenges to accountability instruments notwithstanding, the 2010 Constitution has so far enabled the establishment of more

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efficient and effective transparency and accountability frameworks. Thus, for example, the 2012 PFM Act is important in four ways: (1) by harmonizing existing laws on financial management; (2) by integrating international financial management standards with Kenyan’s financial management practice; (3) by safeguarding the financial autonomy of the national and county government through a clear demarcation of their respective financial responsibilities; and (4) by promoting the principles of public finance through the creation of Standing Committees in the legislature at both levels of government. The professionalization of these Standing Committees includes ensuring (1) the identification of risks through establishing a risk management framework, (2) regular reviews of the adequacy and integrity of the internal controls of public bodies, (3) establishment and implementation of a system for information dissemination to stakeholders, and (4) a system for monitoring the effectiveness of corporate governance practices, including timely resolution of issues that arise from auditing. Moreover, Article 226 (5) of the 2010 Constitution stipulates that “[i]f the holder of a public office, including a political office, directs or approves the use of public funds contrary to law or instructions, the person is liable for any loss arising from that use and shall make good the loss, whether the person remains the holder of the office or not”. The penalties also include “conviction of a term of imprisonment not exceeding five years or a fine not exceeding Ksh10  million or both such fine and imprisonment” (PFM Act 2012 Section 199). Article 228 of the Constitution establishes the office of the Controller of the Budget whose function is to oversee the implementation of national and county government budgets by authorizing withdrawals from public funds. This office must ensure that all withdrawals of public money are lawfully authorized. The function of the Auditor-General is to audit and within six months after the end of each financial year report to Parliament or the relevant County Assembly on the accounts of all entities supported by public funds. The 2010 Constitution has opened the door to greater transparency and accountability in public administration. As indicated earlier, a series of new legal instruments have been put in place but there are still weaknesses that need correction, notably those relating to jurisdictional overlaps and the lack of trust that citizens have in public agencies (Onyango 2019b). Accountability institutions need to be strengthened to deal with the prevalence of an administrative cadre that is antagonistic to being held publicly accountable. This includes the appointment of officials in these

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institutions who can stand up to government leaders and officials that violate their public trust. The Lack of Integrity of Public Officials Like many countries around the world, Kenya is plagued by corruption in public office. Officials take advantage of their position to make personal gains and in other ways undercut the confidence that people have in public institutions. It is especially grave when this happens in agencies responsible for administering justice. In addition to being difficult to access in the less populated parts of Kenya, the costs involved in seeking recourse, and the shortage of attorneys, the judicial system is characterized by delays and outright corruption. For a long time, the Judiciary has frustrated anti-­ corruption efforts by EACC and other agencies. The Director of Public Prosecution (DPP) “has accused it of issuing conservatory orders that derail cases and allowing accused state officers to access their offices”.2 A former Chief Justice has gone as far as claiming that Kenya is a “bandit economy”, that is, one where government agencies are run by organized crime groups or cartels that have close dealings with the political elite. He stated further that “[y]ou are taking these people into a corrupt investigating system, through a corrupt anti-corruption system, and a corrupt judiciary”.3 Some of the weaknesses afflicting the Judiciary apply also to other independent institutions like the EACC and CAJ. Thus, institutionalized corruption is a serious threat to public accountability and rule-of-­ law in Kenya. The prevalence of public integrity problems in Kenya demonstrates the gap in state-society relations. The superimposition of the state by the colonial powers and its limited presence in the daily lives of the citizenry have been used to describe this gap (e.g. Young 2004; Mamdani 1996). Another set of explanations tends to emphasize the loyalty people have towards their local community rather than the state (e.g. Ekeh 1975; Hyden 1980). This preference for the local is one reason why the state, as we have shown above, becomes an arena for rivalling communities to secure its share of the public purse. The result is that members of the 2  The Standard (5 January 2019). Eyes on Judiciary as corruption cases spark fierce debate, Standard Media Group. accessed from https://www.standardmedia.co.ke/article/2001308406/eyes-turn-to-courts-in-corruption-cases on 2 May 2020. 3  The Guardian (13 January 2016). “Kenya is run by mafia-style cartels, says chief justice”, Guardian News & Media Limited. https://www.theguardian.com/world/2016/jan/13/ kenya-is-run-by-mafia-style-cartels-says-chief-justice accessed on 2 May 2020.

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political elite are inclined towards corruption rather than integrity. The point is that corruption in Africa’s multi-ethnic countries where political parties are based in communities of consumption rather than in economic interests associated with economic production, for example, capital and labour, the problem is not merely a matter of deviant behaviour but a structural issue that legislation alone does not solve. The state-society gap that has plagued Kenya for generations, and continues to do so, will eventually disappear but only when social formations and social organization reflect the economic interest of social classes rather than parochial interests of ethnic communities. Against this background, it should be no surprise that the legal and regulatory framework for dealing with corruption in Kenya has been characterized by amendments and “fresh starts”, especially in the past couple of decades when the search for forms of democratic governance intensified. The pursuit of integrity in the public service began with the adoption of the Prevention of Corruption Ordinance in 1916 which lasted through the colonial period. After independence, it became the 1963 Prevention of Corruption Act (POCA). Since then, especially, in the late 1970s and more intensely after the fall of KANU in 2002, Kenya has witnessed substantive institutional and legal development of anti-­ corruption and other integrity systems. With the coming to power of the National Rainbow Coalition (NARC) in 2002 and the adoption of the 2010 Constitution, the successive governments have put in place elaborate integrity systems characterized by complementary legal frameworks. In the context of anti-corruption efforts, this institutional development of Integrity systems is summarized in Table 9.2. Besides the revision of older legislation, several other laws and ethical guidelines are now in place, including the Bribery Act, 2016, the Public Procurement and Disposal Act, 2005, the Proceeds of Crime, and Anti-­ money Laundering Act, 2009. Furthermore, the agencies concerned, and county governments are making efforts to adopt these laws into their systems. This plethora of laws and their complementary functions demonstrate the complexity of pursing public integrity. These new laws notwithstanding, political challenges remain. They include: (1) the continued unwillingness of political and public officials to draw a clear line between private and public interests; (2) the difficulty to know what qualifies as lobbying and what does not: Kenyan legislators rarely use their “collective powers” to make policies and laws or to exercise oversight of the executive branch and instead act individually to promote personal ambitions; (3) the burden of proof to discipline rogue officials; (4) the presence

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Table 9.2  Development of Integrity systems in the context of anti-­ corruption efforts Agency/integrity system

Period

Legal framework

The Prevention of Corruption Act (POCA) The Anti-Corruption Squad Kenya Anti-Corruption Authority (KACA) Anti-Corruption Police Unit (ACPU) Kenya Anti-Corruption Commission, (KACC)

1963–1990

The Penal Code/POCA/Code of Regulations The Prevention of Corruption Act; POCA/ within the Police Force Amended POCA,Kenya Anti-Corruption Advisory Board (KAAB) Amended POCA/within the Police Force

Ethics and Anti-­ Corruption Commission

2011–present

1991–1995 1997–2000 2001–2002 2003–2010

ACECA, 2003; Public Officer Ethics Act, 2003; Public Service Integrity Programme (PSIP) Ethics and Anti-Corruption Commission Act (EACCA), 2011; The LIA, 2012

Source: Author

of unconstitutional components in legislation, for example, Sections 26 and 30 of the ACECA; (5) lack of knowledge of relevant laws among the majority of street-level bureaucrats, politicians, and citizenry; (6) insufficient performance incentives; (7) weakness or absence of citizen-oversight; and (8) weak, ambivalent, and overlapping disciplinary mechanisms (Onyango 2019a). In sum, although civil society activists and the media sustain a public discourse on these issues, there are still holes to be filled, rivers to be crossed.

Implications for Policymaking This chapter has highlighted the more serious challenges that exist in the country’s system of public accountability. Kenyans in the early 2020s are becoming more conscious of the weaknesses that exist in the ways the country is being governed. The 2019 Building Bridges Initiative between the President and the Leader of Opposition, Raila Odinga, is at the same time a measure to maintain and reform the regime, as the BBI Task Force Report confirms (Building Bridges Initiative Task Force 2019). With civic consciousness and competence in the country growing, this tension between maintaining the status quo and further improving the mechanisms for public accountability and other aspects of governance is likely to

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be a prominent feature of the political scene in the years to come. Special focus is likely to be laid on how elections can be more independently managed, how the various branches of government and accountability institutions can interact more constructively, and not the least, how citizens can have a greater say in the way the country is governed and its public policies are made. The steps that have already been taken towards greater social accountability are important, but they should not be treated as substitutes for more formal participation in legislative policymaking, notably the sub-­ committee work that takes place in the various elected bodies. Each country that has succeeded in institutionalizing public accountability systems and associated constitutional mechanisms has done so by developing a model that works in the national and local context. Africa’s first generation of constitutions was essential “farewell accords” with the outgoing colonial powers (Okoth Ogendo 1988). They spoke to the transition more than to the local circumstances in which they were to be implemented. Many African countries have yet to go through a “domestication” of constitutional principles and an examination of how they fit the circumstances on the ground. In this respect, Kenya is ahead of others. The extensive—and contested—preparation of the 2010 Constitution that many Kenyans at the time may have viewed as negative wrangling did indeed lay the ground for a better understanding of the complexity that is democratic governance. This foundation remains brittle, as this chapter has shown how state-society relations are constituted and public accountability practised. Strengthening this moral and political basis for a future of democratic governance is partly a structural and long-term modernization process, the fruits of which will not be evident until after many years. It is partly also a matter in which Kenyans can engage immediately. For those Kenyans who wish to contribute to making governance more democratic, there is no shortage of tasks. There is first and foremost a need to shift the policy discourse to focus on the establishment of legal frameworks and structures that enhance citizen participation and input. Another related task is to explore how local value systems can be used to strengthen existing accountability mechanisms. This would be one way to allow citizens to more easily transit from the private to the public sphere on terms that they understand and thus gradually help them develop a better perspective on their role in determining the country’s public policies. Also related to this is the need to make the independent commissions better known to the public and strengthen their role as mechanisms of public accountability. Yet another important task is to continue the search

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for a better balance between the various branches of government and between central and county governments. If the country wishes to move from being a nation of blood ties to one of the civic ideals, as the BBI Task Force Report (2019) argues, there is a need to reduce the scope for patronage politics that begins at the county level. For example, should there be another way of electing eminent persons to the County Assembly so that it becomes representative of local wisdom rather than a mere stepping-­stone to national prominence by using patronage? To achieve this, it might be necessary to consider whether representation should be unsalaried to make it less of a profession than a call. Finally, there is the issue of how county governments can enhance their role in contributing to public policy. One way that should be explored is the proposal that county governments are allowed and encouraged to create regional blocs to act as lobbying mechanisms at the central government level. Such an arrangement, however, would require institutional mechanisms that prevent this lobbying from turning into a corrupt practice. There is also a need to further deepen local governance within county systems to strengthen citizens’ involvement in public accountability processes. The  deepening of  local-government structures should also include an effective  integration of technological innovations and systems  that have put the citizens at the center of public service-delivery into these structures. These are among many issues that no doubt will be raised by Kenyans as they move forward with implementing the basic principles of the 2010 Constitution. It is up to  Kenyans to keep these issues on the policy agenda by sustaining an active and vibrant deliberative discourse.

References Bovens, Mark. 2007. New Forms of Accountability and EU-GOVERNANCE. Comparative European Politics 5 (1): 104–120. Building Bridges Initiative Task Force. 2019. Building Bridges to a United Kenya: From a Nation of Blood Ties to a Nation of Ideals. Nairobi: Office of the President. Ekeh, Peter. 1975. Colonialism and the Two Publics in Africa: A Theoretical Statement. Comparative Studies in Society and History 17 (1): 91–112. Hupe, Peter, and Michael Hill. 2007. Street-Level Bureaucracy and Public Accountability. Public Administration 85 (2): 279–299.

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Hyden, Goran. 1980. Beyond Ujamaa in Tanzania: Underdevelopment and an Uncaptured Peasantry. London, Heinemann, and Berkeley, CA: University of California Press. ———. 2008. The Economy of Affection: Why the African Peasantry Remains Uncaptured. In Contemporary Perspectives on African Moral Economy, ed. Isariah Kimambo et al., 16–34. Dar es Salaam: Dar es Salaam University Press. ———. 2012. Public Administration in Developing and Transitional Societies. In Sage Handbook of Public Administration, ed. B.G.  Peters and J.  Pierre, 603–608. London: Sage. IEBC Kenya. 2018. The Post-election Evaluation Report. Nairobi: Independent Electoral and Boundaries Commission. Logan, Carolyn, and Michael Bratton. 2010. Voting and Democratic Citizenship in Africa. Boulder, CO: Lynne Rienner Publishers. Mamdani, Mahmood. 1996. Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism. Princeton, NJ: Princeton University Press. Morse, Yonatan L. 2012. The Era of Electoral Authoritarianism. World Politics 64 (1): 161–198. Odhiambo-Mbai, Crispin. 2003. Public Service Accountability and Governance in Kenya Since Independence. African Journal of Political Science 8 (1): 113–145. Ogemba, Paul. 2019, November 5. Defiant Maraga Takes Cash War to Executive. The Standard. https://www.standardmedia.co.ke/article/2001348088/ defiant-­maragatakes-­cash-­war-­to-­executive. Accessed 1 May 2020. Okoth Ogendo, Hastings G.W. 1988. Constitutions Without Constitutionalism: An African Paradox. New York: Council of American Learned Societies. Onyango, Gedion. 2017. Collectivism and Reporting of Organizational Wrongdoing in Public Organizations: The Case of County Administration in Kenya. International Review of Sociology 27 (2): 353–372. ———. 2019a. Organizational Disciplinary Actions as Socio-Political Processes in Public Organizations. Public Organization Review 19 (2): 227–248. ———. 2019b. Organizational Trust and Accountability Reforms in Public Management: Analysis of Inter-agency Implementation Relations in Kenya. International Journal of Public Administration 42 (14): 1159–1174. Paul, Samuel. 1992. Accountability in Public Services: Exit, Voice and Control. World Development 20 (7): 1047–1060. Wantchekon, Leonard. 2003. Clientelism and Voting Behavior: Evidence from a Field Experiment in Benin. World Politics 55 (3): 399–422. West, William F. 2004. Formal Procedures, Informal Processes, Accountability, and Responsiveness in Bureaucratic Policy Making: An Institutional Policy Analysis. Public Administration Review 64 (1): 66–80. Young, Crawford. 2004. The end of the post-colonial state in Africa? Reflections on changing African political dynamics. African Affairs 103 (410): 23–49.

CHAPTER 10

Media and Policymaking in Kenya: Framing in Contested Public Spaces George Ogola

Introduction Policymaking entails government decisions and actions that deal with matters of public interest (Cochran and Malone 2005). In African countries like Kenya, this translates into concerns about national unity, public safety, and economic progress with the government claiming guardianship of the mandate to promote what it views as the public good. It produces plans and issues policies aimed at doing this as rationally and sensibly as possible. The significant presence of donor-funded inputs tends to reinforce the notion that public policy is foremost a matter of applying a purposive economic or technical form of rationality to tackling public issues. Because holding the nation together and accelerating development are generally considered urgent, the Kenyan Government, like so many others on the African continent, has been able to justify what amounts to a top-down, managerial approach to making public policy. Since the beginning of the new century, and especially after the adoption of the 2010 Constitution,

G. Ogola (*) School of Arts and Media, University of Central Lancashire, Preston, UK e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 G. Onyango, G. Hyden (eds.), Governing Kenya, https://doi.org/10.1007/978-3-030-61784-4_10

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Kenyans, however, have been demanding a more participatory approach to making public policy relying on dialogue rather than mere direction. Defining the public interest is no longer just a matter for government. Citizens wish to be part of it too. Thus, there is a level of contestation over claims of narrative legitimacy that was largely absent in earlier decades. This chapter seeks to examine this contestation by looking at the role of the media as a deliberative platform for policy debate in Kenya. The chapter begins by placing the issues of the media in public policymaking in its broader theoretical context, highlighting the importance of postmodernist ideas about discursive space. Following this introduction, the discussion focuses on the Kenyan media scene with an examination of how the media participate in policymaking by framing issues in ways that highlight the public interest as defined by actors outside of government. The third section is a case study of the controversial Computer Misuse and Cybercrimes Act of 2018 with the view to demonstrating the threats to the discursive space but also how media actors continue to “speak truth to power”. The fourth and final section looks at the challenges facing the media in Africa evaluating also how far the postmodernist ideas of communicative action help analyse and understand the African situation.

Media as a Deliberative Space: Rethinking Theory and Practice The conception of the media as a deliberative public space derives largely from Jurgen Habermas’s public sphere theory and particularly as it relates to the idea of deliberative democracy. This theory and its relevance to the critique of media practices in democracies has been the subject of many studies (e.g. Dahlberg 2005; Johnson 2006; Elster 2012; Hofmann 2017). Habermas (1989: 176) conceived of a public sphere as a “space made up of private people gathered together as a public and articulating the needs of society with the state”. These discussions are said to subsequently create a public opinion that informs policy debates and “legitimate[s] authority in any functioning democracy” (ibid.). This definition has been criticized for making the public sphere selective. Post-­ structuralists, for example, have argued that it does not account for its capacity to exclude. This controversy notwithstanding, Habermas provides a good lead for exploring the Kenyan media as a potential deliberative space within the context of policymaking.

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Drawing on the work of Chambers (2003), Rosenberg (2005), and Thompson (2008), among others, Dennis Pilon (2009), writing about the deliberative quality of the media reports of the 2007 Ontario referendum debate, argues that “since the democratic moment must be about creating legitimate results that will be accepted by all, regardless of the vote count, it must, therefore, provide space for open and inclusive public deliberation” (ibid.: 3). Deliberation here does not simply refer to “an aggregation of fixed preferences- of voters expressing their will at the ballot box”, rather it is about the act of deliberation itself. He notes that democratic deliberation must be “talk-centric” (ibid.). Citing Parkinson (2003) Pilon notes that “to gain democratic legitimacy, decisions must be justified through a back and forth kind of discussion, where the giving, weighing, acceptance or rejection of reasons… is a public act” (ibid.). These arguments are also shared by Chambers who observes that deliberative democracy focuses on the communicative processes of opinion and will-formation that precede voting (Chambers 2003: 308). These deliberative processes are significant because “public voter preferences may be shaped or formed through the collective process of deliberation itself” (ibid.: 4). What deliberative democracy theorists thus seem to acknowledge is the critical role that the media play in the democratic process. Despite its various criticisms, Habermas’s public sphere theory has been used to determine the deliberative quality of the media. How the media should be judged as a deliberative space is not entirely clear, argues Pilon (2009), although Habermas provides some leads into how this may be done, particularly concerning its role in facilitating deliberative democracy. According to him, the public sphere must be characterized by a set of conditions: (a) broad inclusion and equality in terms of participation and (b) an interactive dynamic where the assumptions or facts undergirding the discussion can be called into question. He highlights four kinds of validity claims that could arise and contribute to an effective and deliberative process (Pilon 2009: 6). These include claims about (1) meaning (clarifying what statements mean), (2) factual knowledge (challenging statements to produce or defend supporting facts), (3) appropriateness (challenging the speaker’s ability to make the kind of statements they are making), and (4) sincerity (challenging whether speakers really mean what they say). Reflecting on these conditions, Goodin thus notes that “there must be uptake and engagement, i.e. other people must hear or read, internalise and respond, for that public-sphere activity to count as remotely

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deliberative” (Goodin 2000: 91). This engagement is not about “balance”, that is, providing two sides of the story, a professional norm that has been institutionalized by media organizations to somewhat define what constitutes impartiality. As Pilon (2009) reminds us, this was not Habermas’s idea of the public sphere. Instead, the focus should be on opinion pieces—editorials, columnists, and op-ed contributions. These are the substantive forms of deliberation where participants make reasoned appeals in support or rejection of specific positions or policy options. The point about communicative action and how it contributes to sustaining public spaces is that it is quite complex and laborious. The conventional approach to policy analysis aimed at identifying an optimal choice has been criticized for being unpractical (Lindblom 1959) and overlooking the limits to rational calculations (Simon 1947). It must be recognized that much of the same type of criticism can be directed to the theory of deliberative space. Even though the objective may be to be inclusive, communicative action is selective and arises only in certain conditions. It essentially means that we stop doing what we are doing and engage in the search of intersubjective validation. This first step towards creating a deliberative space, however, must be followed up by a mutual understanding and a consensus about what to do together with others to tackle the issue. These steps should be voluntary, and there is always a limit to how much an individual is ready to invest time and energy to work with others if there is no pecuniary inventive. The deliberative space, therefore, is not likely to arise in everyday conditions. To be effective, it requires a crisis or a serious legitimacy deficit in society. It manifests itself in acts of civil courage when persons sacrifice self-interest for a common end. There are plenty of examples from history that confirm this. Suffice it here to draw attention to some African examples. In their struggle for independence, African nationalists relied extensively on media, notably the press, to communicate their demand for independence, recruit members, and highlight the legitimacy deficit that the colonial administrations suffered among their African subjects. Much the same occurred in the late 1980s and the early 1990s when Africans took advantage of the global turn towards democracy to call into question the legitimacy of one-party rule. Yet another example may be drawn from Kenya. The debacle and violence that followed the controversial December 2007 elections made many Kenyans stop and ask themselves—what is going on here? Politicians who had been ready to fight each other not just with words realized the costs of the violence to themselves and their country.

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The challenge that these examples illustrate is how to sustain communicative action and a deliberative public space when conditions are different, when there is no alarming legitimacy deficit, and when daily life calls for more mundane commitments. Conflicts between government and citizens concerning the definition of the public interest may not become violent but as “low-intensity” variants can still affect the quality of governance as government plans clash with policy dialogue, the hierarchy with participation, and compliance with mobilization. These contestations have four dimensions that are summarized in Fig. 10.1. Government, as well as citizens, may draw on any of these components to justify their claim to be guardians of the public interest, although the former is likely to draw on economic rationality, in particular, while the latter often fall back on reinventions of cultural idioms. These contestations have more recently been exacerbated by the emerging communicative spaces outside of mainstream media and how they too are used or instrumentalized for public deliberation. Some scholars now argue that Habermas’s public sphere requires a new conceptualization especially in the light of the proliferation of digital media technologies which have radically transformed public communication. Volkmer (2014), for example, argues that online communities have now created new deliberative spaces Government

Economic

Political

Purposive rationality

Communicative rationality Technological

Cultural

Citizens

Fig. 10.1  Components in contestations over definition of public in Kenya. (Source: The author)

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where reason-based debates and decision-making occur. She notes that the idea of consensus is changing in the emerging online public and argues that “agreement is no longer related to a bounded civic collective but fluctuating across thematic spaces and loyalties of broad unbounded communicated spheres which articulate new types of normative structures”. Volkmer adds, deliberative spheres “emerge within a new in-betweenness, no longer between citizen and the state but between digital engagement of choice” (ibid.: 50). She contends that some deliberative discussions on social media are part of “a multi-layered spectrum of subjectively chosen authentic communicative forms, incorporating traditional local dimensions of deliberative cultures which are now embedded in deliberative public practices across geographies of network spheres” (ibid.: 65). With specific reference to these developments in Africa, Oginni and Moitui (2015: 159–60), for example, argue that social media present an opportunity to incorporate a multitude of opinions or alternatives during policy processes to drive civic engagements and establish mechanisms for effective policy implementation and feedback in the digital age. Critics, however, point to the largely commercial focus of social media that not only shapes but also invisibly influences deliberations online through the use of algorithms. Thus, rather than make these spaces deliberative, they create filter bubbles that instead limit open and rational debate. Fenton and Barassi (2011) are among those who express reservations regarding the democratic potential of the kind of networked individualism that characterizes most online conversations. This atomization of the collective undermines the democratic potential these online spaces and tools have. In addition, the hierarchization of the online media environment particularly on Twitter is also increasingly problematic (Ogola 2019). Social capital outside these spaces can be used to create hierarchies of power in conversations online. The “primary definers” online tend to be the social and political elite, undermining the imagined narrative of power dispersal. This elite has the means to sponsor specific narratives by using bots or by paying social media influencers. Other factors to consider include the variable technological literacies and access limitations which influence the degree of public participation. These platforms may therefore not be as radically inclusive as they have been touted. While extending the frameworks of the public sphere is unavoidable and must, therefore, be at the centre of conversations about the deliberative quality of public communication platforms, there are reasons to remain cautious particularly about their complex nature. It is with this note in mind that we now turn to the Kenyan media scene.

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Media Framing and Public Policy Deliberation in Kenya The media role in public policymaking takes many forms, two of which are central to the analysis here. First, the media can define the frames within which a policy debate is conducted. Frames are primarily interpretive schemata through which meaning is made. Journalists must always decide which facts to include or emphasize, whom to use as sources, and what really is “at issue” when reporting a story (Entman 1993). Such choices combine to create a frame that both supports the story and influences interpretation by audiences. The media can, therefore, create a frame by disproportionately carrying stories that are congruent with a specific viewpoint or position. The second point is that the media can also provide an open “deliberative” platform allowing the public and other actors to debate a policy proposal or provide feedback on the policy. While the causal relationship between media action and policy action remains difficult to ascertain, Robinson (2001) argues that the media role becomes especially important in times of policy uncertainty, an observation that is also made by Mwangi (2018). Such uncertainty is often caused by policy ambiguity, instances when a policy is characterized by “vagueness, multiple interpretations or ambivalence” (Zahariadis 1999: 73). In such cases, media intervention can be significant in legitimizing a given perspective on a policy proposal however self-serving such action may be. It takes the form of “agenda-setting” by making some stories salient and framed to fit a preferred narrative (McCombs 2005). As various scholars have argued, the media may not necessarily tell you how to think but they can tell you what to think about. The salience of issues on the media agenda, therefore, not only affects which ones the public consider most important, but it may also ultimately determine their policy preferences (McCombs and Shaw 1972). Mwangi (2018: 2) adds that the more attention the media give to an issue, the more the public becomes aware of it and the stronger the incentive, therefore, for policymakers to frame a response to it. Her own case study from Kenya examines the coverage of policy proposals for control of alcoholic drinks in the country between 2005 and 2015. She notes that home-brewed liquor was described as either “killer brews” or “traditional brews” giving such drinks a less favourable frame than other alcoholic drinks such as beer and wine in newspaper coverage of stories on the policy proposals. While some Kenyans saw value in preserving a traditional cultural practice, the media framed the issue as one of tackling a health crisis (ibid.: 3).

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Debating the Computer Misuse and Cybercrimes Act 2018 As the above example illustrates, the framing of issues is an important instrument for shaping public opinion. That is the way the media exercise their power in society. As actors in public space, they compete with others. As such, their role tends to be contested. It happens especially when their voice criticizes or contradicts government opinion. In countries like Kenya without a tradition of freedom of expression, criticism of government easily generates responses aimed at closing down or in other ways limiting the independent media, be they newspapers or bloggers. Because of the rapidly growing popularity of digital media, they have attracted special attention by government censors. A brief examination of the public debates that preceded the adoption of the 2018 Computer Misuse and Cybercrimes Act illustrates the challenges of engaging in communicative action in the Kenyan public sphere. The debate began in 2014 after the Office of the Director of Public Prosecutions (ODPP) had proposed a cybercrimes legislation “to equip law enforcement agencies with the necessary legal and forensic tools to tackle cybercrime, which is said to have cost nearly KShs 2 billion (USD 23  million) to the Kenyan economy in 2013” (Article 19.org 2014). According to this source, the bill was proposed following the recommendation at the country’s Cyber Security conference in June 2014. At this occasion, the Telecommunications Service Providers Association of Kenya (TESPOK) and cybersecurity groups from Canada, Singapore, South Africa, India, and the USA discussed the role of the private sector in tackling cybercrime and recommended the adoption of a comprehensive cybercrime law in light of the perceived failure of the existing legal framework to deal with recent terrorist attacks (ibid.). The bill generated significant debate in the mainstream and social media as well as in various civil society seminars and workshops across the country. The proposal came at a time when the government was clamping down on dissent that had become especially intense in online platforms like Twitter and Facebook. These sites had become significant spaces for public deliberation, particularly of state malpractices. Through “fiscal blackmail”, for example, refusal to advertise, and other instruments of control, the government had an invisible grip of the media. Criticism of the state was possible but within definite bounds, beyond which the state would institute one form or another of penalty, a significant case being the former Daily Nation editor, Denis Galava, who was summarily dismissed

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by his employer in 2016 because he had written an editorial which heavily criticized President Uhuru Kenyatta (Allison 2016). This is one of the many examples that demonstrate media acquiesce to state influence. With the added online spaces, there was a rapid growth of new important pockets of political defiance with immense mobilization potential around issues of national interest. These spaces also could disrupt the kind of narrative order that the state was keen to promote particularly within the context of its policymaking. The scope of the proposed bill was quite broad covering not just financial cybercrime but the whole information infrastructure that the online platforms had enabled. It, therefore, touched on fundamental constitutional rights including freedom of speech and right to information. It is arguable that “information management” was at the centre of this policy proposal. The policy, however, was carefully dressed to focus on crimes that easily elicit public support such as money laundering, hate crimes, and child pornography. The lack of clarity on the issues it was seeking to address made most of its provisions pointedly ambiguous. This gave the media space to shape the narrative frames through which the policy was discussed, as Zahariadis (1999) suggests. As noted above, media frames are forms of interpretive schemes that when used strategically help determine the narratives that drive specific stories. In respect to this policy proposal, the media disproportionately focused on its potentially adverse effect, the key areas being its impact on freedom of expression, its instrumentalization for political repression, and its stifling effects on the development of the emerging digital economy. There was less focus on the key official elements of the proposal such as financial cybercrime, online child pornography, and cyberbullying. A range of actors in favour of the media position on the bill was given substantive space in the newspapers either as sources/experts in news stories or as op-eds and columnists. These included organizations focused on media freedom and rights issues such as Article 19, Committee for the Protection of Journalists (CPJ), human rights lawyers, newspaper columnists, Bloggers of Kenya Association (BAKE), and others with positions congruent with that of the media. For example, in an article in the Daily Nation, the author cited several authoritative sources to make his case including a representative for the CPJ, the Kenya Editors Guild, and a former Law Society of Kenya Chief Executive (Muinde 2018). This was typical of such stories where sourcing was carefully done to legitimize a favoured narrative. There were also news stories of seminars and workshops where these proposals were being debated especially by those against the provisions in the proposed bill.

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Comparisons were also made with other countries in the region, including Tanzania and Uganda, where similar legislation had been proposed and passed causing widespread condemnation both in the region and across the world. The proposed legislation was broadly described as part of the new repressive contagion affecting the region. The state was also given space in the media and their thematic focus was just as deliberately selective. In one article carried by the Standard newspaper, the author referred to the support for the bill given by the Secretary, Communication and State House Spokesperson, Manoah Esipisu; the minority whip, Junet Mohammed; and an influential member of the National Assembly (Obura 2018). Those supporting it focused mainly on the justification offered by the government of the bill—battling financial cybercrime, helping fight terrorism, and curbing hate crime as well as child pornography. The state did not substantively address any of the adverse implications of the policy proposal on various constitutional rights, the point that critics had made their most fundamental opposition to the bill. The coverage of this policy was also informed by similar conversations online. It is important to note that internet penetration and use in Kenya is significantly higher than the average on the continent, driven mostly by the widespread use of smartphones. According to recent statistics from the Communications Authority of Kenya (CA), in 2018, 43 million out of a total of 53  million Kenyans had access to the internet mainly through mobile phones. Internet penetration is estimated at nearly 85% (www. ca.gov.ke). The country has a vociferous online community particularly on Twitter, which is highly engaged politically. Twitter’s inherent capacity to address publics based on various relationships and networks, for example, interest, friendship, and geography, has facilitated the formation of a series of active online groups in Kenya. These groups aggregate under an amorphous, yet identifiable, online community called “Kenyans on Twitter” commonly referred to as KOT. This online community has become a powerful player in political agenda-setting in the country. It is undermining old political gatekeeping processes, redefining mainstream media agendas, and framing stories in a manner that is increasingly difficult to police. It is notable that stories trending on the KOT timelines tend to find space in and are further animated by mainstream media. The latter now regularly monitor trending topics on KOT timelines, effectively making it a news beat. For example, considering the implications some of the proposals were going to have on this community, there were significant debates of the bill online by activists, civil society, and the public more generally that were also covered as news stories in the Kenyan press.

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Civil society organisations, most notably Article 19 found the following provisions in the bill charactreised by legal and definitional ambiguity, vagueness and the penalties proposed for the offenses excessive.

Box 10.1  Controversial Provisions in the 2018 Cybercrimes Bill 

a) Cybersquatting: the unauthorized and intentional use of a name, business name, trademark, domain name, or other word or phrase that is registered, owned, or in use by another person. Penalty: A fine not exceeding two hundred thousand shillings or imprisonment for a term not exceeding two years, or both. b) Phishing: the creation or operation of a website or the sending of messages intended induces a person to disclose personal information. Penalty: A fine not exceeding three hundred thousadn shillings or imprisonement for a term not exceeding three years, or both.  c) The publication and dissemination of intimate or obscene pictures of another person. Penalty: A fine not exceeding two hundred thousand shillings or imprisonement for a term not exceeding two years, or both. d) Identity theft and impersonation: the dishonest or fraudulent use of an electronic signature, password, or the unique identification feature of another person. Penalty: A fine not exceeding two hundred thousand shillings or imprisonment for a term not exceeding three years, or both. e) Failure by an employee to relinquish access codes. Employees are required to relinquish all codes and rights upon termination of their employment.  Penalty: A fine not exceeding two hundred thousand shillings or imprisonment for a term not exceeding two years or both. f) Reporting of cyber threats. Operators of computer systems and networks are required to report to the NCCCC within 24 hours, incidences of attacks, intrusions, and disruptions to the functioning of their computer systems or networks. The operators are required to provide details of the breach, estimates of the number

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Box 10.1  (continued)

of affected individuals, an assessment of the risk of harm and circumstances that may delay or prevent affected persons from being informed of the breach. Penalty: A fine not exceeding two hundred thousadn shillings or imprisonement for a term not exceeding two years, or both. g) The interception of electronic messages or money transfers. This refers to the unlawful destruction or termination of any electronic mail or process for the transfer of money or information. Penalty: A fine not exceeding one hundred thousand shillings or a term of imprisonement not exceeding seven years, or both.147 h) Cyberterrorism: the accessing or the facilitation of access to a computer, a computer system, or network for the purposes of committing a terrorist act. Penalty: A fine not exceeding five millions shillings or imprisonement for a term not exceeding ten years, or both. (Source: Article 19).

When the bill went to parliament, the National Assembly did acknowledge the public reaction to the proposal and consequently made several amendments, including the name of the bill itself. Rather than the Computer and Cybercrimes Bill, it was renamed the Computer Misuse and Cybercrimes. Bill. The initial debates had revolved around the constitutionality of several provisions in the bill. Parliament, therefore, tried to address these issues especially those that were seen to undermine the constitutional right to privacy, freedom of expression, and access to information. Still, many controversial provisions made it to the final statute. Parliament also introduced several other amendments which again provoked an outpouring of criticism. Some of these amendments included the establishment of the National Computer and Cybercrimes Coordination Committee comprising representatives from the Kenya Defence Forces, the National Police Service, the National Intelligence Service, the Ministry

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of the Interior and representatives from the office of the Attorney General and Director of Public Prosecutions, Communications Authority of Kenya and the Central Bank. The committee had a broad mandate including, among other things, advising and coordinating national security organs on matters relating to computer misuse and cybercrimes. Once again, media coverage focused on the deleterious effect of these amendments on constitutional rights mostly by way of op-eds by actors whose views were congruent with those of the broader media sector. Yet again, vociferous criticism of the amendments came from Kenya’s online community. When the bill was finally passed and signed by the President and became statute, the Bloggers Association of Kenya (BAKE) took the government to court wanting it to quash 26 sections of the Computer Misuse and Cybercrimes Act 2018. The Kenya Union of Journalists and Article 19 were enjoined in the case as interested parties. The litigants argued that the Act infringed upon freedom of expression and the right to privacy and that the vague and overboard terminologies in the Act meant that the 51.1 million internet users risked being prosecuted on relatively flimsy grounds. For example, they objected to the provisions in the law which criminalized the abuse of persons on social media on the pretext that it amounted to hate speech. They also complained about the composition of the National Computer and Cybercrimes Coordination Committee because its membership was drawn solely from government arguing that it was not adequately representative of the sector to perform its oversight roles. One of the most contested sections of the Act was its attempt to address the “infodemic” of fake news. The group argued that while this was a legitimate concern not just in Kenya but worldwide, the Act’s interpretation of what constitutes false was problematic. They argued that in practice, it gave fertile grounds for those in power to use and misuse it to arrest, intimidate, and threaten bloggers and other Kenyans online. False information was defined as information that is designed to cause panic, yet such information could just as much be regarded by the public as ridicule and genuine criticism. These provisions were suspended temporarily pending the determination of the case. The High Court however later dismissed the case and upheld the provisions of the Act. As was feared, a number of these provisions in the Act have since been used as the basis for arrests, particularly of bloggers. Pointedly, most of them have not been convicted of any crimes.

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Deliberative Spaces for Policymaking: The Challenges The High Court decision to uphold the Computer Misuse and Cybercrimes Act of 2018 is hardly a victory for participatory and open policymaking in Kenya. Yet in the midst of disappointments among those adversely affected by this decision, there is reason to take stock of the lessons learned and the challenges that continued efforts to create and sustain deliberative spaces in Kenyan policymaking face. Two concluding observations are of special significance. The first is the tendency for engagement to be confined to a relatively small number of participants; the second is the closer interactions that have developed between digital and traditional media. Almost two decades ago when the internet was new and expectations were high that it would help democratize African countries, Michael Leslie, a media scholar, warned that there was no reason to believe that everyone with access to the internet would actually use it for purpose of civic engagement (Leslie 2002). As this access has continued to widen, it is increasingly clear that Leslie’s caution was justified. The case discussed above has laid bare the less attractive side of the social media, notably its partisan and select nature. The debate about the 2018 Bill was never pursued to reach consensus. Instead, it became a war of words indicating that participants were more interested in symbolism than substance. The search for a mutual understanding to find common ground for making the policy was undermined by partisan positions that nobody was ready to abandon. Furthermore, the debate was dominated by a few “Alpha” users whose voices framed the deliberations in their way. In a Habermasian perspective, the cyberspace crime story is not a very encouraging one. The question, however, is what can be expected in a country that historically is so different from the context in which Habermas formulated his theory of communicative action and its role in shaping public space. Two issues deserve further examination to fully understand what one can expect of communicative action in African countries like Kenya. The first is the challenge of establishing what in his words amounts to an unforced consensus. The second is his focus on process or procedure rather than outcome, the point we flagged at the outset of this chapter.

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In Search of Unforced Consensus Habermas was a thinker in the German tradition. He was influenced by Immanuel Kant, Karl Marx, and Max Weber, all main figures in the interface between theory and practice. He may be best described as an “idealist in pragmatist clothing”. Like Kant, he believed in the goodness of human intuitions, but since he was not a moralist, he argued that the goodness of our intuitions would grow out of the real-life experience. He was also like Marx, a dialectic thinker believing that mutual understanding would come from one position being exposed to its opposite. Like Weber, he was a rationalist believing that human reason would prevail. Habermas concluded that what is good is not fixed in a specific set of principles but is rather the result of intersubjective validation, a process that has no end. The result is that what counts as unforced consensus is never set in stone. It is rather a work in continuous progress reflecting the ever-shifting social realities. Nonetheless, Habermas was a captive of his own history and geography. His lifeworld was imbued with bourgeois values and the notion that individuals are autonomous in their choices. Although he was a critic himself of modernization theory, he readily accepted that it was capitalism that had served as the driver behind the rise of the public sphere (Habermas 1989). Thus, it is important to note that the Habermasian ideas are not necessarily applicable as a universal theory. When discussed in the African context, it is obvious that many ingredients that shaped his thinking are not present. Society is not based on the same socio-economic formations that shaped German and European society half a century ago. It is not bourgeois in either structure or culture. Nor is it individualist in the same sense that Habermasian theory assumes. Instead, African countries like Kenya are characterized by their social organization into parochial entities like ethnic and religious groups rather than modern social classes based on economic interest. Developing an unforced consensus is not impossible in these conditions, but it is much more difficult to reach. These groups do not share a common moral foundation except when they face a common threat or enemy as the case was when they mobilized against the colonial powers. Reaching an unforced consensus, therefore, in national policymaking is not going to happen overnight but is a process that needs to be nurtured over a long period. In short, even if the process displays shortcomings, as in the cybercrime case discussed earlier, Habermas would be satisfied with the suggestion that creating deliberative space is an ongoing challenge without a definite endpoint.

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Emphasis on Process Rather than the Outcome Habermas contrasted his own theory of communicative rationality with the purposive form of rationality that privileges identifying the optimal means to achieve a certain end. To him, rationality was intersubjective— the result of communication among actors engaging in a civic public realm. The emphasis in his theory, therefore, lies in the process rather than outcome, the focus in the definition of rationality among Anglo-Saxon thinkers dating back to John Stuart Mill. It is, of course, the latter that has dominated public discourse in much of the world ever since the Second World War when development in the shape of modernization was internationalized and made into the philosophical foundation for foreign aid to developing countries. Habermas had argued that before capitalism paved the way for the rise of a public sphere, societies were characterized by a representational culture, a set of hegemonic values controlled by a ruling elite made up of kings, princes, and aristocracy. The opening of the governance sphere to the public was an emancipatory act enabling the emergence of democratic forms of governance. It can be argued that African countries as multiethnic societies are still preoccupied with creating and maintaining a representative culture, meant to encompass all groups in a single nation. African leaders, for example, as others in this volume have argued, view compliance with such a dominant set of values as a prerequisite for national unity and development, evident in neighbouring countries like Rwanda and Tanzania. The public sphere is virtually absent in both places. Because capitalism has taken root in Kenya, it is different. There is more evidence of the growth of a public sphere. Kenya finds itself in a transitory stage in which the political elite adheres to the notion of a pre-capitalist version of the governance sphere, while enough space has been created by civic groups to make ideas—and policymaking—more open and contested. As the example discussed in this chapter illustrates, the scope for communicative action is still limited, but the spirit of Habermas is present in civil society which seeks emancipation from the representational culture of the political elite by seeking leverage in the moral values associated with already developed democracies. This leaves the media to tread a careful balance between complying with the law of the land, on the one hand, and the other, facilitating and supporting the rise of communicative action and

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a stronger public sphere. The growing convergence between the voices of the digital media and the editorials of mainstream media in support of such strengthening of the public sphere is a positive development on which this emancipation can be further enhanced. The challenge is to be both inclusive and sincere in the search of a mutual understanding. At a time when the notion of “fake” news has become a popular way of delegitimizing challenges to the political elite, it is extra important that communicative action is credible and supported by facts. It may well be that the “fake news” syndrome has made most media actors more aware of the need to be sincere and credible using facts to back up their narrative. In this context, it is worth asking where the African tradition of “palaver”—a word derived from the Portuguese palabra, is. It signifies an informal process of horizontal problem-solving rather than one directed in a topdown fashion, thereby valuing the equality of each participant and each contribution. This practice entails both inclusiveness and participation in search of an unforced consensus based on a holistic assessment of all aspects of the issue. But palavers are also different from a postmodernist search of unforced consensus. In the African palaver, the main objective is not emancipation but confirmation of community values. It is open to the wisdom of the elders and in search of a consensus that is morally and culturally binding. This contrasts with the postmodernist version of communicative action in which the search of truth is permanently open. There is no closure on what is good and bad. Furthermore, because the objective is to enlarge public space rather than conserving it, there are many sticking-points, not the least that participants insist on their individual rights. Promoting communicative action in such conditions is more challenging than it is within the African palaver community.

Conclusion This chapter has examined the theory of communicative action, a key ingredient in Jurgen Habermas’s contribution to our understanding of governance in a modern democratic society. It has demonstrated that although the bourgeois context that induced Habermas to develop his theory of communicative rationality is hardly present in Kenya to the same extent, in its ongoing transition to a modern, middle-income country, it is beginning to take on some of the qualities that make it increasingly relevant for analysing and understanding the challenges of building a deliberative public space. In covering the debates that preceded the adoption of

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the controversial 2018 Computer Misuse and Cybercrimes Bill, the chapter has highlighted the challenges that Kenya faces in enlarging the space for participatory engagement in the public sphere, more specifically how both social and conventional media actors face a penalty if transcending the boundaries set in law by the state. Even with penalties hanging over their heads, these media actors play an important role in helping to frame issues and keeping the public space alive.

References Allison, Simon. 2016. Another Knock for Kenya’s Once Might Media. Daily Maverick. https://www.dailymaverick.co.za/article/2016-­01-­25-­another-­ knock-­f or-­k enyas-­o nce-­m ightymedia/#.VqdQmmThDWZ&gsc.tab=0. Accessed 2 July 2020. Article 19. 2014. Kenya: Cybercrime and Computer Related Crimes Bill, Article 19.org. https://www.article19.org/wp-­content/uploads/2018/02/Kenya-­ Cybercrime-­Bill-­129072014-­BB.pdf. Accessed 1 July 2020. Chambers, Simone. 2003. Deliberative Democratic Theory. Annual Review of Political Science 6: 307–326. Cochran, Charles, and Eloise Malone. 2005. Public Policy: Perspectives and Choices. Boston: McGraw Hill College. Dahlberg, Lincoln. 2005. The Habermasian Public Sphere: Taking Difference Seriously? Theory and Society 34 (2): 111–136. Elster, Jon. 2012. Deliberative Democracy. Cambridge, UK: Cambridge University Press. Entman, Robert. 1993. Framing: Toward Clarification of a Fractured Paradigm. Journal of Communication 43 (4): 51–58. Fenton, Natalie, and Veronica Barassi. 2011. Alternative Media and Social Networking Sites: The Politics of Individuation and Political Participation. The Communication Review 14 (3): 179–196. Goodin, Robert. 2000. Democratic Deliberation Within. Philosophy and Public Affairs 29 (1): 81–109. Habermas, Jurgen. 1989. The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society. Cambridge, MA: MIT Press. Hofmann, Michael. 2017. Habermas’s Public Sphere: A Critique. Latham, MA: Rowman & Littlefield and Fairleigh Dickinson University Press. Johnson, Pauline. 2006. Rescuing the Public Sphere. Oxford: Routledge. Leslie, Michael. 2002. The Internet and Democratization. In Media and Democracy in Africa, ed. Goran Hyden, Michael Leslie, and Folu F.  Ogundimo. New Brunswick, NJ: Transaction Publishers. Lindblom, Charles. 1959. The Science of ‘Muddling Through’. Public Administration Review 19 (2): 79–88.

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McCombs, Maxwell. 2005. A Look at Agenda-Setting: Past, Present and Future. Journalism Studies 6 (4): 543–557. McCombs, Maxwell, and Donald Shaw. 1972. The Agenda-Setting Function of the Media. The Public Quarterly 36 (2): 176–187. Muinde, Joel. 2018. President Kenyatta Assents to Cybercrimes Bill Amid Protests. Daily Nation. https://www.nation.co.ke/kenya/news/presidentkenyatta-­ assents-­to-­cybercrimes-­bill-­amid-­protests-­44116. Accessed 2 July 2020. Mwangi, Christine. 2018. Media Influence on Public Policy in Kenya: The Case of Illicit Brew Consumption. SAGE OPEN 8 (2): 1–13. Obura, Fredrick. 2018. Uhuru Signs into Law Computer Cybercrimes Bill. The Standard. https://www.standardmedia.co.ke/article/2001280622/uhuru-­ signs-­intolaw-­computer-­and-­cybercrimes-­bill. Accessed 3 July 2020. Oginni, Simon, and Joash Moitui. 2015. Social Media and Public Policy Process in Africa: Enhanced Policy Process in Digital Age. Consilience: The Journal of Sustainable Development 12 (2): 158–172. Ogola, George. 2019. What would Magufuli do? Kenya’s Digital “Practices” and ‘Individuation’ as a (Non)political Act. Journal of Eastern African Studies 13 (1): 124–139. Parkinson, John. 2003. Legitimacy Problems in Deliberative Democracy. Political Studies 51 (1): 180–196. Pilon, Dennis. 2009. Investigating Media as a Deliberative Space: Newspaper Opinions about Voting Systems in the 2007 Ontario Provincial Referendum. Canadian Political Science Review 3 (3): 1–23. Robinson, Piers. 2001. Theorizing the Influence of Media on World Politics: Models of Media Influence on Foreign Policy. European Journal of Communication 16 (4): 523–544. Rosenberg, Shawn. 2005. The Empirical Study of Democracy: Setting a Research Agenda. Working Paper 05.03. Irvine: Center for the Study of Democracy, University of California. Simon, Herbert A. 1947. Administrative Behavior: A Study of Decision-Making Processes in Administrative Organizations. New York: Macmillan. Thompson, Dennis. 2008. Who Should Govern Who Governs? The Role of Citizens in Reforming the Electoral System. In Designing Deliberative Democracy: The British Columbia Citizens’ Assembly, ed. M.  Warren and H. Pearse, 20–49. Cambridge: Cambridge University Press. Volkmer, Ingrid. 2014. The Global Public Sphere: Public Communication in the Age of Reflective Interdependence. London: Polity Press. Zahariadis, Nikolaos. 1999. Ambiguity, Time and Multiple Streams. In Theories of the Policy Process, ed. P.A.  Sabatier and C.  Weible, 73–93. Boulder, CO: Westview Press.

CHAPTER 11

The Politics of External Resource Mobilization: From Foreign Aid to Foreign Investment Fred Jonyo

Introduction No state can exist on its own. Even those that have tried, like North Korea, find themselves forced to rely on others to assist in their development. The essence of statehood, therefore, implies a complex and multidimensional relationship in external resource mobilization. As a developing country, mobilizing financial and human resources from external sources has been an important part of Kenya’s development policy agenda. This flow of resources can be divided into two phases, the first being dominated by foreign aid and the second by foreign investment. This chapter begins with a discussion of the differences between aid and an investment regime before identifying Kenya’s approach to external resource mobilization. The next section examines the theories that are applied for understanding

F. Jonyo (*) Department of Political Science and Public Administration, University of Nairobi, Nairobi, Kenya e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 G. Onyango, G. Hyden (eds.), Governing Kenya, https://doi.org/10.1007/978-3-030-61784-4_11

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policymaking at the inter-state level. Using these theoretical perspectives, the following section is devoted to understanding what it means to make policy choices under constraining circumstances. The chapter ends with a focus on Kenya’s relations with China, first examining its lopsided nature and then providing a case study of the Standard Gauge Railway (SGR) project, funded on credit by China. The chapter ends with a discussion of the implications of the policy choices Kenya has made boost its developing finance from external sources.

Kenya Between Foreign Aid and Foreign Investment Public policies rest on broader normative foundations, in developing countries like Kenya notably on what “development” is all about. Is it about economic growth or social equality? Is it about the individual or the nation? Is it about economics or politics? These were pertinent and widely discussed issues in the early years of Kenya’s independence when the country was preoccupied with crafting broad developmental strategies to demonstrate its internal and external capabilities of self-government. The Sessional Paper no. 10 of 1965 on African Socialism and Its Application to Planning in Kenya emphasized a mixed economy intended to address social justice, unemployment, income inequalities, and poverty. Kenya’s pursuit of trickle-down economic growth, however, was at the time challenged by concerns about equality leading the International Labour Organization (ILO) in a 1972 seminal report to recommend a strategy of redistribution with growth that could address macro-economic imbalances. Kenya’s economic system has largely continued along the same lines since independence with an emphasis on the market as the driver of change. The governments of Jomo Kenyatta and Daniel arap Moi had four decades at their disposal to institutionalize a system in which political development would reinforce the economic system. This meant the evolution of a patron-client form of capitalism around which public institutions were built. Because Kenya was developing side-by-side with Tanzania which had adopted a socialist system in which the state rather than the market dominated, there was at the time a lively public debate about the pros and cons of each country’s model. The first couple of decades in Kenya and Tanzania were years when the government was trying to find its way forward. These attempts reflected the views of the emerging political elite, in Kenya one that was rooted in

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agricultural production, in Tanzania one that was based in urban consumption. Foreign aid was viewed as a complement to local efforts. The policy agenda was owned by the local elite as illustrated in Tanzania’s ujamaa and Kenya’s harambee. Academics contributed to the debate by questioning how far the new states in Africa had really gained full independence. Drawing on the works of Samir Amin (1973) and Immanuel Wallerstein (1974), among others, academics kept important policy issues alive. Development was a contested concept, but even if it was more so in theory than practice, it opened space for alternative policy options. The liveliness of the academic debates in the 1970s and the 1980s meant that local policy thinking was very much alive and providing the framework for interacting with external resource providers as further discussed by Peter Anyang’ Nyong’o in Chap. 16. This gradually changed, and by the end of the century, the notion of development had been mainstreamed by the international donor community through such accords as the Millennium Development Goals. The agenda was now set at the supranational level, and it fell upon developing countries in need of external resources to abide by global “targets”. This reduced governments in Africa to mere implementors. The structural adjustment policies that were imposed by the International Monetary Fund and the World Bank exacerbated the sense in African countries that they no longer had control over their own affairs. The “neo-colonial” spectre that academics had argued about was becoming a political reality: no aid without conditionalities. This “donorship” in the relations with African governments rendered foreign aid increasingly controversial. It made these governments aware of the “costs” of foreign aid. High levels of aid dependency have become a policy concern, encouraging many of these governments to turn to foreign investment as the preferred mechanism for channelling external resources into their economy. With China emerging as the principal source of investments in African countries, including Kenya, the question has inevitably arisen whether they will be better off in an investment regime than in an aid regime, or they are merely jumping out of the frying pan into the fire. A closer look indicates that foreign aid and foreign investment have much in common as external resource mechanisms, but they are also different in some important respects, as Table 11.1 confirms. Foreign aid has been primarily targeted on the social development sector, that is, education, health, and water. It has been primarily provided in the form of government-to-government grants, not loans, by the

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Table 11.1  Comparison of foreign aid and foreign investment

Principal target Disbursement mechanism Temporal dimension Conditionalities

Foreign aid

Foreign investment

Social development sectors Government-to-government grants Short to medium term Political

Infrastructural projects Bank loans Medium to long term Financial

Source: Author

principles of the Official Development Assistance (ODA) agreed upon by all the Western donors in the early 1960s. Commitments have been translated into short- to medium-term projects or programmes. Conditions have typically been of a “software” nature referred to as “good governance”. This is where foreign aid has become controversial. It has required a form of institutional behaviour that African leaders have found to be too much of an intrusion into how they govern. Foreign investment is more financial than political. It does not raise political preconditions and there is no payment up-front. It is long term and the full implications are known only much later when loan repayment begins. It is easy for government leaders to sign off on big loans for infrastructure projects. Conditions involve “hardware”, that is, collaterals in the form of physical or financial assets. Such big projects give leaders instant legitimacy, but they often overlook the consequences for future generations who are bound to repay the loans. Such are the pros and cons of relying on foreign investment as we will illustrate further with reference to Kenya’s reliance on Chinese investments in its economy.

Kenya’s Approach to External Resource Mobilization Foreign aid has constituted a significant portion of capital inflows to developing countries (Radelet 2006). As Fig.  11.1 shows, Kenya has relied heavily on bilateral aid, primarily from Western governments like the United States, the United Kingdom, Japan, and Germany. Multilateral aid in the form of concessional loans from the World Bank institutions grew in size after the structural adjustment regime was imposed on governments in Africa (Mwega 2005). Like other African countries, Kenya had to increasingly seek external finance to help restructure its economy. These programmes have come to define Kenya’s economic development path. Among its prescriptions were (a) liberalization of the economy, (b)

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Fig. 11.1  Bilateral and multilateral aid to Kenya, 1968–2011

reduction of the government workforce, (c) the enhanced role of the private sector in the economy, and (d) cost-sharing in government services. These adjustments became the framework around which external finance was to be disbursed into the country. Because Kenya, like other developing countries, was viewed as having “lived beyond its means” as evident in the balance of payment accounts, the preconditions for accessing credit were made harder. They included improved governance, multiparty political system, respect of human rights, fundamental freedoms, respect for the free press, and accountability in the management of public resources. Not surprisingly, these were met with reluctance from the Kenyan government as it was perceived as interference in the internal affairs of Kenya. The government, however, had little choice and agreed to swallow the “bitter pill”. As a strategy to fulfil these requirements, several policy interventions were implemented through the Kenya External Trade Authority (KETA) meant to better attract and absorb external capital. These measures include (a) export-oriented manufacturing under bond with less bureaucracy in documentation management, (b) creation of export promotion zones (EPZ) use of comparative advantage in exchange for the establishment of foreign manufacturing enterprises, (c) reform of the tariff structure with a gradual easing of restrictions, (d) pegging most products on the least prohibitive license platform, (e) enhancing user-friendly subsidy on

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manufactured products, and (f) having practical exchange rate regimes (Ndulu et al. 2009). Because other developing countries were introducing the same policies, much of what happened in the wake of structural adjustment became a race to see which country would sell itself most cheaply, the main reason why governments in Africa and other developing regions also detested the regime and considered its implementation to be a national embarrassment. The adjustment, therefore, has been painful and it has not been put into practice without complaints. Yet, in the 2020s these policies have become standard fare and Kenyans are taking them for granted. Figure 11.1 illustrates the bilateral and multilateral aid from 1968 to 2011. Structural adjustment has also accelerated the shift from foreign aid to foreign investment. The international donor community has realized that merely supplying aid to achieve global development targets at the country level is not viable because many countries do not have governments with the capacity to absorb the money. The pendulum, therefore, has swung towards diversifying the channels through which aid is disbursed. The previous restrictions on aid as a pure government-to-government transfer have been lifted, and both civil society and private sector actors have become part of the aid community. This means that the line between aid and investment has also been blurred. By 2020, there seems to be an agreement emerging between donors and recipients that external resources are best used in contexts where they productively complement local resource mobilization. This suggests that the social equality aspect of foreign aid that dominated in the past has now been replaced by a concern with economic growth, the assumption being that social development challenges should be left to host governments. Such is the context in which the Kenyan government must make its public policies.

Understanding Policy Choice Amidst Constraints There are three theoretical frameworks within which state behaviour is typically analysed (Allison 1971). The rational actor model argues that the policymaking process is guided by the maximization of returns through clarifying goals and assessing a hierarchy of priorities with the view to finding the optimal choice. The organizational model maintains that the goals and intentions of policymaking are already in place within a well-established procedural framework. Government agencies have guidelines, charters, or regimes that they follow in discharging their mandate. The

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bureaucratic model asserts that individuals wield influence in decision-­ making. Policies reflect bargaining and compromises that elites make to maintain the status quo in their transactional relationship within the state. Nobody wants to “rock the boat” or to make decisions that increase uncertainty. All three of these frameworks are at play when it comes to understanding Kenya’s policy choices for mobilizing external resources. It can be argued that in principle the essential features of each framework are needed for effective policymaking. Ideally, they complement each other because policy relies on rationality, reliable procedures, and agreement among key actors. In practice, however, they often work at cross-purpose with each other. As Simon (1947) argued, procedures typically limit the search for optimality and that actors involved in policymaking often settle for a “satisficing” option, and Lindblom (1959) would later assert that policy formulation is a process of muddling through. These observations are relevant for understanding the Kenyan predicament. The country’s policy architecture approaches foreign aid intending to find the “best deal”. Such a deal, however, is not always easy to find and, if anything, has become increasingly difficult to achieve. Kenya relied for many years on bilateral aid because of its lower interest repayments, easy debt rescheduling in cases of default, support for long-term projects, significant portions of grants, and enhanced international cooperation. Kenya’s development partners included the United States, the United Kingdom, Japan, France, and Germany just to mention a few. After the end of the Cold War, however, and building on the need for structural adjustment of the African economies, the costs of bilateral aid shot up, as indicated above. Since the 1980s Kenya has been required to liberalize its economy, introduce a multiparty political system, respect fundamental freedoms, encourage a free press, promote accountability and transparency in the management of public resources. Like many other African governments, Kenya has only reluctantly embraced these new policy directions. The comparative advantages of bilateral foreign aid are no longer evident which explains the gradual move towards reliance on an investment regime where costs are deemed to be less—at least in the short run. Kenya’s development ambitions are summarized in Vision 2030, a document that breaks down the concept into three pillars: economic, social, and political. Like Sessional Paper no. 10 of 1965 which became the lead development document in the years after independence, Vision 2030 also serves as a “marketing” tool for external resource mobilization. Like other

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developing countries, Kenya in its search for external aid must project a vision of where it wants to be a generation later. Following in the wake of New Public Management, such a vision statement has become a virtual condition for aid from Western donors. It tends to have the unfortunate effect of reinforcing the disjuncture between promise and practice. The foundation on which the country is expected to build a rational strategy is more like a pie-in-the-sky. While a long-term perspective usually is an advantage in policymaking, it loses much of it in situations where uncertainty prevails and there are structural constraints limiting choice. What Western donors have insisted upon before dispensing their aid, therefore, has little value in the policymaking realities of countries like Kenya, where instead adaptation to a constraining environment is a more appropriate doctrine. It is also, by and large, how Kenyan policymakers approach it. Rationality is indeed “bounded” by subjectivity and change is a matter of “muddling through”. While rationality features prominently up-front in any attempt to seek aid from Western donors, it is in the end much more the outcome of diplomatic negotiations within a framework of well-known procedures. What transpires resembles the organizational model of policymaking. Each party knows what the other is up to, what the conditions are, and what can be expected. The foundation for the negotiations has been laid by bureaucrats on both sides. Their influence is evident in the documents that are signed once the negotiations have been successfully concluded. Mobilizing external resources for investment is a different story. It does not require the projection of a 30-year development scenario or vision. Nor does it call for the same diplomatic frames as foreign aid. In short, it requires less of the host country than in the case of foreign aid. What matters most for the investor is a certainty, which in African countries tend to be interpreted as political stability. Procedures do not have the same “sacrosanct” nature as in foreign aid. In cases of investment, it may be expedient to bend the rules: the investor wants the opportunity badly and the host country official sees the gains in facilitating it. Bribing is the next step. This is a temptation that parties to an investment deal must resist but not always do. On balance, therefore, investment tends to be less immediately demanding of the host country, and as the lure of foreign aid has been diminishing, it is no surprise, as suggested above, that investment is now viewed by African governments, including Kenya, as the preferred mobilizing mechanism. For this reason, it is important to take a closer

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look at Kenya’s relationship with China, because it is built around major investments in infrastructure.

Kenya’s Engagement with China Although Kenya was quite generally rewarded with foreign aid, questions have increasingly been raised about how far the foreign aid regime is a sustainable basis for development. These queries come at a time when Kenya has “graduated” to become a lower-middle-income country for which stricter credit conditions apply from international and regional development banks. It does appear as if Kenya becomes a victim of its own success as it moves to a level where the credit conditions are tougher. Public finance management takes on additional significance. The policy load becomes more complex and heavier over the years to come as Kenya grows more fully integrated into the global economy and needs to enhance its competitiveness. As part of this strategy, Kenya is also viewing itself as an important contributor to regional economic integration, especially within the East African region (National Treasury of Kenya 2011). It is in this context that Kenya’s increasing engagement with China should be seen. Kenya is an important African link in China’s global Belt and Road Initiative (BRI). China’s involvement in Kenya’s infrastructure development began earlier with the building of the Thika Superhighway for Ksh 32 billion during the last term of President Mwai Kibaki, 2009–2012. The country has continued to rely on China for mega investments taking on loans amounting to $1 billion annually in the last few years. Since 2013 the ties have been further strengthened. As part of the BRI, Kenya has contracted a combination of semi-concessional and commercial loans from China for infrastructure investment, notably the Standard Gauge Railway (SGR) which will be discussed in greater detail below. With the cost of borrowing from the World Bank and other Western-financed credit institutions rising, China’s role in Kenya has become even more dominant. To capture Kenya’s external capital exploits succinctly, the engagement with China in the context of the Belt and Road Initiative is quite illustrative. It is discussed here concerning (1) investment, (2) trade, and (3) debt. Investment. Kenya’s role in China’s Belt and Road Initiative helps facilitate the expansion of Chinese investments into the country. Already, in construction and engineering, Chinese firms dominate in Africa with about a 50% share of the total in the international engineering,

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procurement, and construction market (McKinsey 2017, p.  30). This rapid takeover of these sectors allows the transferal of the chronic oversupply of construction material in China to the continent, as well as providing new markets for Chinese companies. For companies that do invest in Africa, profit margins are high. Among Chinese firms that participated in a McKinsey’s study, nearly a quarter said they had covered their initial investment in one year or less, and more than half reported that they had taken three years or less to get back their initial investment (ibid., p. 30). Nearly one-third of the Chinese firms surveyed reported 2015 profit margins of more than 20%. The same report attributes these high-profit margins to the absence of competition. There are too few African firms with capital and technology to compete with the Chinese and too few Western companies with the risk appetite to invest in Africa (ibid., pp.  33–34). While Chinese investors have benefitted from their investments in Kenya, the first phase of the SGR shows that local content agreements have helped spur domestic industrial capacity, for example, by improving the standard of local construction materials. Trade. In comparison with other African countries, Kenya’s exports to China have been growing since 2008, but the trade balance has remained lopsided in China’s favour. For example, in 2018, Kenyan exports were valued at $173.6 million, while its imports were $5197.7 million, a staggering 30 times the value of the imports (China-Africa Research Initiative 2019). This discrepancy in recent years has been especially large because of the importation of railway and tramway track construction material, motor vehicles for the transport of goods, mechanical shovels, and excavators used in the construction of the Standard Gauge Railway. Although it can be argued that these imports displace locally manufactured goods, the main losers here are companies from other countries of the world who cannot produce these goods as cheaply. Chinese imports have also had the effect of boosting labour productivity within certain sectors of the economy consequently increasing employment in services. Debt. Upon promulgating Kenya’s “One China Policy” in August 2005, President Kibaki’s Government began receiving Chinese credit lines in 2006. As of June 2017, China accounted for 66.2% of Kenya’s total bilateral debt, up from 2.2% in 2007 (Chemnyongoi and Ochieng 2018, p. 8). The stock of debt from China started rising steadily in 2011 and has grown over time due to the continued bilateral engagements with Kenya in infrastructural development. The share of commercial loans in external

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debt rose from Kshs 574 million in 2007 (representing 0.1% of Kenya’s total external debt stock) to Kshs 634 billion in 2017 (representing 29.4% of total external debt). In the July–December 2018 period, Kenya’s debt to China accounted for 22% of its total foreign debt. Notably, during this period, Nairobi paid Kshs 12.80 billion in interest, compared to only Kshs 2.63  billion of the principal amount indicating the high lending rates. Critically, Kenya has faced increased debt service obligations after May 2019, as the original five-year grace period extended by the Exim Bank of China for the SGR ended that year. The sustainability of the BRI debt will be dependent in large part on the output and utilization of the completed infrastructure projects (China Africa Research Initiative 2019). The SGR project provides insights about some of the challenges that Kenya faces in realizing the full value of these projects.

The Standard Gauge Railway (SGR) Project The SGR is the biggest infrastructure project in Kenya since independence. According to Kenya Railways (2019), the SGR was originally commissioned by the governments of Kenya, Rwanda, South Sudan, and Uganda which expressed their commitment to providing high capacity, cost-effective railway transport within what the East African Community refers to as the Northern Transport Corridor. This plan was to be realized through a high-capacity, high-speed SGR for both freight and passenger services, to connect Mombasa port in Kenya to the inland capitals, Kampala, Kigali, and Juba. Each country was given the task of acquiring capital for building the section of the railway line within its borders. In October 2009, the governments of Kenya and Uganda signed a memorandum of understanding to build the SGR from Mombasa to Kampala, and a tripartite treaty was signed in August 2013 by Kenya, Uganda, and Rwanda to fast-track the construction of the rail lines to their respective capitals. Kenya, for its part, was tasked with developing the line from Mombasa to Malaba on the Ugandan border in two phases: the first from Mombasa to Nairobi, work on which began in December 2014 and became operational 30  months later, and the second from Nairobi to Malaba. The latter was further divided into three separate sub-sections, one from Nairobi to Naivasha, a second from Naivasha to Kisumu which includes the construction of a new port at Kisumu on Lake Victoria, and a third from Kisumu to Malaba.

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The purpose of the SGR is to standardize the railway layout in East Africa to facilitate transport, reduce production costs, and thus enhance regional integration. After the first leg was completed, it opened on 31 May 2017, and for the first five years, it is being managed by the China Communications Construction Company which operates two different categories of passenger trains: Intercity and County Trains. The Intercity Train called Madaraka Express travels between Nairobi and Mombasa at a maximum speed of 120km/hour with a capacity of 1200 passengers. The County Train which stops at intermediate stations along the route (Mariakani, Maisenyi, Voi, Mtito Andei, Kibwezi, Emali, and Athi River) has the same seat capacity as the Intercity version but takes about 5 hours and 30 minutes instead of 4 hours to complete the journey. Kenyans living along the completed Mombasa-Nairobi line and those travelling between the capital and the coast have expressed their satisfaction with the improved railway transportation. Despite being only half-­ built, the SGR has become a national pride (Warutere 2018). At the same time, the project continues to be surrounded by controversy stemming from cost overruns and lukewarm interest in neighbouring countries to do their part. The following issues are the main question marks hanging over the SGR in Kenya: (1) ignoring feasibility considerations, (2) rising costs and shortfall in revenue, and (3) declining commitment among neighbouring countries. Ignoring Feasibility Considerations The construction of the SGR was preceded by several feasibility studies focused primarily on whether to improve the existing narrow gauge (1000mms) or to upgrade to standard gauge (1435  mms). The debate about which option to choose was quite contentious. The Kenyan government was advised to refurbish the old metre-gauge railway at an estimated cost of about Ksh 100  billion (c. $980  million). An additional Kshs 100 billion would have been required to lease 5000 wagons and 200 locomotives for four years (Kareithi 2019). It was argued that upgrading of the metre-gauge railway, rather than building a completely new railway, would have saved 30% of the cost as landowners would not need to have been compensated (ibid.). Given the projected freight volumes and axle loads, renovation of the metre-gauge would have been sufficient and could have been completely paid for by a Railway Development Levy on imports. The Levy is in operation now to help service the debt owed on the SGR and

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consists of a 1.5% tax on any goods imported into Kenya.1 Thus to repay the Chinese, Kenya has had to increase the cost of doing business in the country and make it potentially less attractive to investors. A feasibility study conducted by a reputable Canadian firm on upgrading the existing rail networks in Kenya, Tanzania, and Uganda estimated that “investment of approximately $1.2 billion by the concessionaires and owners of the four railway systems” in East Africa would have been required (Canadian Pacific Consulting Services 2009, p. ii). This amount was for the entire rail system in East Africa and in sharp contrast to the estimated capital costs for converting the network to standard gauge which would range from $4 billion to $29 billion, “depending on whether the existing lines were converted or new lines built and whether the existing alignment or a new alignment is built” (ibid., p. iii): Curiously, despite these reservations, the Kenyan government opted for the most expensive option. A second feasibility study was carried out by China Road and Bridge Corporation (CRBC) following an agreement in 2009 between the Kenyan government and the CRBC for the latter to do the feasibility study and preliminary design of the Mombasa-Nairobi section at no cost to the Government of Kenya. There was a provision, however, that the report could only be used by the Government of Kenya, Kenya Railways Corporation, and the CRBC (Republic of Kenya National Assembly 2014, p. 2). One observer who had access to this report notes: The CRBC feasibility study has a chapter titled economic evaluation, though it is unlike any investment appraisal I have come across. It asserts that the project has “high profitability” and “financial accumulation ability”, but there are no cash flow projections to back this up. It presents Net Present Value (NPV) of three different configurations of US$ 2.0, 2.4, and 2.6 billion as evidence of viability, leaving one at a loss to understand how this justifies borrowing US$3.2 billion for the project. NPV is the current value of the future earnings of a project and should be higher than the cost of the project. (Ndii 2018)

This seems to have paved the way for a $3.8 billion contract in May 2014 between the Kenyan government and Premier Li Keqiang to 1  The Railway Development Levy was originally proposed to pay the land compensation costs for people evicted to make way for the SGR. Predictably, massive corruption has surrounded this process.

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proceed with the SGR. Of this sum, 85% of the capital would come from the Exim Bank of China, with the Kenyan government providing the balance. The loan, whose interest is 3.6% points above the six-month London Inter-Bank Offered Rate (Libor) average, is to be repaid in 15  years. Kenya’s Transport Cabinet Secretary, Michael Kamau, later admitted to the Parliamentary Public Investment Committee that the procurement law was ignored in negotiations with the Chinese. Kenya had no choice but to work under the conditions set by the Chinese, and as a result, procurement of the tender was not subject to the regulations established by the Public Procurement and Disposal Act. As one analyst put it: “the bidding was opaque, and the law was stretched, even skewed to allow CRBC to get the tender” (Maalim 2014, pp. 42–43). Shortfall in Revenue Since its launch, the SGR has been chronically underutilized and has been running at a loss. Indeed, it incurred a Ksh 9.89 billion loss in its first year of operation, according to Kenya’s Transport and Infrastructure Cabinet Secretary, James Macharia. This averaged a monthly loss of Ksh 750.7 million in the 2017/2018 financial year “largely due to low cargo business” (Mwiti 2018). The fact is, until and unless the SGR connection to Uganda is accomplished, the only export commodities that may utilize the line from Nairobi to Mombasa are tea, coffee, hides and skins, and animal and vegetable oils. None of these is high value, and as discussed below, Uganda is now seemingly withdrawing from the SGR project. SGR’s annual running capacity is 22  million tonnes with supposed plans to increase it to 31 million tonnes. Yet even if all of Kenya’s exports were routed through the SGR, only 3.2 million tonnes would be utilized (Kenya National Bureau of Statistics 2018). In 2018, 5.039 million tonnes were transported from Mombasa to Nairobi on the SGR: an underutilization rate of 77% (Munda 2019). This underutilization, however, is undoubtedly larger given that two different reports issued by the KNBS have reported different figures for the SGR’s revenues. An initial revenue report admitted that the SGR had garnered Kshs 10 billion against its running costs of Kshs 12 billion. Yet in May 2019, in its Leading Economic Indicators report, KNBS revised the figure down by 44%. The difference was explained in the tonnage and revenues from the freight side of the SGR. The initial report had indicated that the above-mentioned 5.039 million tonnes of cargo had been transported on the SGR railway between

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January and December 2018; the May report later stated that the actual figure was only 2.898  million tonnes. Since Mombasa’s port processed 25.5 million tonnes of imports and 4.1 million tonnes of exports in 2018, less than 10% of freight in and out of the port utilized the SGR (Kiruga 2019). At the end of May 2019, KNBS announced that in 2018 the SGR generated sales of $57 million against the annual operating cost of $120 million (Global Construction Review 2019). Increases in prices for usage of the SGR have been re-announced regularly since it began its operations. In November 2018 it was stated that cargo charges would rise substantially from 1 January 2019. In one single price hike, the SGR raised the price for transporting containers between Mombasa and Nairobi as follows: for a 20-foot container from Kshs 35,000 to Kshs 51,275 and a 40-foot container from Kshs 40,000 to Kshs 71,785—in the first case an increase by 46.5% and in the second by 79.9% (Otieno 2018). In late January 2019, it was then announced that passenger fares for children on the SGR would increase by 100% (Otieno 2019). Declining Commitment in Neighbouring Countries Despite calls for regional cooperation dating back to the early years of independence in East Africa and the potential benefits of closer economic ties in the sub-region, getting the member governments of the East African Community to agree on something has proved a hard nut to crack. As in so many other instances, this has been the case with the SGR project, yet the viability of this multi-billion investment stands and falls with cargo being shipped from the neighbouring countries—Rwanda, South Sudan, and Uganda. After President John Magufuli of Tanzania came to power in late 2015, Tanzania has increasingly flexed its muscles and has forged good relations with both Rwanda and Uganda. This has led to some adjustments at Kenya’s expense in the routing of regional infrastructure projects. For instance, in April 2016, Uganda determined that a $4 billion oil pipeline to the Indian Ocean coastline would traverse Tanzania instead of Kenya. Rwanda subsequently announced that its own SGR railway would be routed through Tanzania instead of Kenya. Then in June 2019, Uganda announced that it would spend $205 million in restoring the old railway line linking Kampala to Malaba on the Kenyan border rather than pursue the planned SGR. This calls into question Phase 2C of the SGR within

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Kenya. As one report noted, “It is now uncertain whether Uganda’s joint plan with Kenya and Rwanda, conceived six years ago, to build a standard gauge railway (SGR) that connects East Africa’s land-locked nations to the Kenyan port of Mombasa, will come to fruition” (East African, 9 June 2019). Certainly, Rwanda and Uganda’s departure from the SGR presents a major problem for Kenya as the cost-benefit estimate for the SGR changes dramatically. In the light of these developments in the region, it is not surprising that the Chinese refused to extend another credit line of 3.6 billion for the completion of the SGR beyond Naivasha, despite a personal intervention by President Kenyatta during a visit to Beijing. The Chinese instead insisted on a new feasibility study of the Mombasa-Kisumu route to be carried out to assess options for how to proceed. It looks more and more like the Kenyan government is being pushed to drop any future expansion of the SGR in favour of upgrading the existing narrow gauge from Naivasha to Kisumu. The viability of the railway has certainly sparked yet another debate among economists, policymakers, and analysts (Anyanzwa 2019).

Conclusion The SGR “saga” is not over yet. Its full implications for the transport system in the country are yet to be known. As a mega project, involving considerable external funding, there is no doubt that it has provided lessons for the future. Three such lessons seem appropriate at this point: (1) being in debt leaves you with little choice, (2) the larger the project, the bigger the crumbs falling off the table, and (3) advancement cause jealousy among neighbours. Kenya’s engagement with China has been based on loans for its national infrastructure development. It has escaped the type of conditionalities associated with aid from Western donors, but it has had to accept its role as a debtor nation with the limitations in policy choice that follows. As the SGR project illustrates, the Kenyan government has been compelled to dance to the tune of the Chinese. Whether it is foreign aid or foreign investment, there are costs to political sovereignty. Large-scale projects tend to generate national prestige. Political elites in developing countries find it hard to resist them. The SGR is a Kenyan illustration. As the case has been with many Chinese infrastructure projects overseas, they may have been cheaper than those submitted by competitors from other

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countries, yet they have been overpriced leaving room for “crumbs” to fall into the pockets of strategic actors. The SGR project, while planned as a regional project, has been scaled down, and it has run into serious cost issues. Therefore, there is a blow to both Kenyans and Chinese stakeholders. They have incurred losses both financially and politically. Furthermore, by directing much of the cargo trade to the railway, road transport operators and those small towns that serve as “rest stops” for truck drivers and other travellers are suffering from a decline in traffic and business. What those along the railway line have gained, others have lost. Finally, the SGR was planned as an instrument of regional integration, but it seems to have encouraged the opposite. Neighbouring countries, not least Tanzania, viewed with jealousy that the Kenyans were able to secure Chinese funding for this big infrastructure project which would have tied Uganda and Rwanda closer to Nairobi. Tanzania had received a similar offer by the Chinese 50 years ago to build the Tanzania-Zambia Railway (TAZARA). It is a project that to this day fails to generate profit. Traffic relies primarily on shipping low-value commodities within Tanzania and ought to have served as a warning to those planning the SGR.  Reservations about the project, however, arose only once implementation had started, and it was too late to back out. When Rwanda and Uganda did so and chose to route their traffic through Tanzania, Kenya was stranded with the cost of the SGR on its own. External resource mobilization on the scale of the SGR involving multiple countries carries great risks as the various feasibility studies in the early 2000s indicated. It serves as a warning to not only Kenyans but also people in the other East African countries. Whether it is money borrowed from the Chinese or any other country, policy decisions about these contracts need to be transparent and based on as reliable figures as possible.

References Allison, Graham. 1971. Essence of Decision: Explaining the Cuban Missile Crisis. Upper Saddle River, NJ: Addison Wesley Longman. Amin, Samir. 1973. Unequal Development: Essay on the Social Formations of Peripheral Capitalism. Paris: Minuit. Anyanzwa, James. 2019. SGR Future in Doubt as Governments Revert to Old Metre Gauge Railways. East African, June 19. https://www.theeastafrican. co.ke/business/SGRfuture-­in-­doubt/2560-­5163080-­nhvaiaz/index.html. Accessed 15 June 2019.

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Canadian Pacific Consulting Services. 2009. East African Railways Master Plan Study: Final Report. Bridgetown, Barbados: CPCS Transcom International Limited. Chemnyongoi, Hellen, and James Ochieng. 2018. Developments in Kenya’s Public Debt: 2007–2017. Policy Monitor 10 (1): 4. China-Africa Research Initiative. 2019. China-Africa Annual Trade Data: Country-by-Country 1992–2018. Washington, DC: Johns Hopkins University. East African. 2019. Uganda Plans to Restore Old Railway at $205m. June 9. https://www.theeastafrican.co.ke/business/Uganda-­plans-­to-­r estore-­old-­ railway/25605149582-­of2a4z/index.html. Accessed 20 June 2019. Global Construction Review. 2019. Debt Fears as Kenya’s New Chinese Railway Fails to Break Even. 29 May. http://www.globalconstructionreview.com/news/debt-­ fears-­kenyasnew-­chinese-­railway-­fails-­break-­/. Accessed 21 June 2019. Kareithi, Amos. 2019. Experts: Why Upgrade of Metre Gauge Railway is Coming a Little Too Late. Standard Digital, May 12. www.standardmedia.co.ke/article/2001325110/complexities-­of-­r eviving-­the-­123-­yearold-­meter-­gauge-­ railway. Accessed 7 June 2019. Kenya National Bureau of Statistics. 2018. Leading Economic Indicators, December 2018. Nairobi: Kenya National Bureau of Statistics. Kenya Railways. 2019. Standard Gauge Railway. http://krc.co.ke/?page_ id=1525. Accessed 10 June 2019. Kiruga, Morris. 2019. Kenya’s Rail Deal with China’s CRBC a Blow to Taxpayers. Africa Report, June 12. https://www.theafricareport.com/13914/kenyas-­ rail-­deal-­with-­chinas-­crbc-­ablow-­to-­taxpayers/. Accessed 7 June 2019. Lindblom, Charles E. 1959. The Science of Muddling Through. Public Administration Review 19 (1): 79–88. Maalim, Abdinur. 2014. SGR: The Glaring Omissions. Nairobi Monthly 5 (6): 5–7. McKinsey Global Institute. 2017. Lions on the Move II: Realizing the Potential of Africa’s Economies. London: McKinsey Global Institute. Munda, Constant. 2019. Kenya’s Debt Repayment to China, India Increases. Business Daily, March 19. Nairobi. http://www.businessdailyafrica.com/datahub/kenya-­s -­d ebt-­r epayment-­t ochina%2D%2Dindia-­i ncreases/3815418-­ 5031450-­ygd6n9/index.html. Accessed 21 June 2019. Mwega, Francis M., ed. 2005. African Imperatives in the World Trade Order: Case Studies of Kenya. Nairobi: African Economic Research Consortium. Mwiti, Lee. 2018. SGR Makes Sh10 Billion Loss in First Year. Standard Digital, July 18. Nairobi. https://www.standardmedia.co.ke/article/2001288487/ sgr-­makes-­sh10-­billion-­loss-­infirst-­year. Accessed 20 June 2019. National Treasury of Kenya. 2011. Annual Report 2011. Nairobi: The National Treasury.

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Ndii, David. 2018. SGR by the Numbers  – Some Unpleasant Arithmetic. The Elephant, July 21. https://www.theeastafricanreview.info/op-­eds/2018/07/21/ sgr-­by-­the-­numbers-­someunpleasant-­arithmetic/. Accessed 17 June 2019. Ndulu, Benno, Stephen A.  O’Connell, Robert H.  Bates, and Paul Collier, eds. 2009. The Political Economy of Economic Growth in Africa, 1960–2000. Vol. 1. Cambridge: Cambridge University Press. Otieno, Bonface. 2018. SGR Fees up 79 pc on China Pay. Business Daily, November 22. ———. 2019. SGR Children Fares Up 100pc in Kenya Railways Review. Business Daily, January 23. Radelet, Steven. 2006. A Primer on Foreign Aid. CGD Working Paper No 92. Washington, DC: Center for Global Development. Republic of Kenya National Assembly. 2014. Special Report on the Procurement and Financing of the Construction of Standard Gauge Railway from Mombasa to Nairobi Phase I. 29th April, 2014. Nairobi: Clerk’s Chambers, Parliament Buildings. Simon, Herbert A. 1947. Administrative Behavior: A Study of Decision-Making Processes in Administrative Organization. New York: Free Press. Wallerstein, Immanuel. 1974. The Modern World-System: Capitalist Agriculture and the Origins of the European World-Economy in the Sixteenth Century. New York: Academic Press. Warutere, Peter. 2018. Why SGR Will Not Make Money Soon But Makes Economic Sense. Daily Nation, July 26. https://www.nation.co.ke/oped/ opinion/Why-­S GR-­w ill-­n ot-­m akemoney-­s oon-­b ut-­m akes-­e conomic-­ sense/440808-­4681082-­143x96x/index.html. Accessed 25 June 2019.

CHAPTER 12

Taxation Systems and Public Policy in Kenya: Unpacking the Unwritten Tax Treaty Policy Attiya Waris and Elvis Oyare

Introduction Taxation is an essential governance function and has been the subject of considerable research in the context of both democratization and state-­ building (Levi 1988; Tilly 1990; Brautigam et al. 2008). This literature has largely focused on the role that taxation plays in the domestic political arena. It has focused on the “social contract”—the notion that citizens pay tax in return for services and benefits by the state. This is an important aspect of governance in African countries, but it has already been covered elsewhere in this volume, especially in the previous chapter by Onyango on state-society relations. In recent decades, globalization has fuelled attention to the external dimension of national taxation systems: how individual countries sign agreements that regulate the taxation of foreign

A. Waris (*) School of Law, University of Nairobi, Nairobi, Kenya e-mail: [email protected] E. Oyare Committee on Fiscal Studies, University of Nairobi, Nairobi, Kenya © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 G. Onyango, G. Hyden (eds.), Governing Kenya, https://doi.org/10.1007/978-3-030-61784-4_12

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entities, notably multinational corporations that are needed for investment purposes, yet because of their transnational character pay little, if any, tax, in the countries where they operate. The purpose of this chapter is to discuss the role of tax treaties in the international fiscal system and how this issue specifically affects Kenya. It begins with a discussion of why tax treaties are important to governments, before proceeding to an examination of what goes into tax policy. The second half of the chapter covers issues specific to Kenya, both what the country needs to do to enhance its capacity to gain from entering into double tax agreements and what the barriers to success might be.

Why Tax Treaties? Double taxation agreements (DTAs), also referred to as tax treaties, have developed out of a need by contracting individual states to find a common scheme of taxation to deal with transnational entities that may be liable to taxation in more than one jurisdiction (Smith 1959). DTAs are instruments for the creation of favourable investment climates, as confirmed in the preamble of the model tax convention of the United Nations (UN) and the Organisation for Economic Cooperation and Development (OECD). While the avoidance of double taxation has always been their primary role, states are increasingly concluding DTAs in pursuance of other complementary objectives, for instance, to attract foreign direct investment through ensuring fiscal certainty to investors and to facilitate cross-border trade through the provision of fiscal and other incentives (Hearson 2015). The rationale for tax treaties, therefore, is twofold: to attract investment while also regulating transactions to minimize revenue losses. They are easily at cross-purpose and striking an acceptable balance is a political act. For the first few decades after independence, the balance was in favour of regulation—to stop capital flows from African countries to “tax havens” in Switzerland and elsewhere. Those regulations were often flouted by African leaders who transferred massive amounts of money into private accounts or private investments in developed countries. Tax treaties in those days were few and national taxation systems ineffective. The flow of money out of Africa by well-placed political leaders negated much of the foreign aid that these countries received. According to one source, a staggering US$ 1.2–1.4 trillion left the African region illicitly between 1980 and 2009 (Global Financial Integrity and African Development Bank

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2013). This figure far exceeds what these countries received in the form of foreign aid. It further confirms that wherever governance is not transparent, tax evasion is rampant. Tax evasion is only one side of the problem African states face in obtaining revenue for their administration and development. Because the domestic revenue base in these countries is limited, they must also ensure that they can tax corporations and individuals that invest in their countries but are residents elsewhere. For this purpose, they sign tax treaties to “catch” corporations and individuals who are ready to invest but do so on the best available terms. Thus, as African states aim at increasing their revenue from foreign actors within their jurisdiction, these same actors approach investment intending to pay as little tax as possible. It is not uncommon, therefore, for multinational corporations to engage in what amounts to “treaty shopping”, a practice that tends to affect African states to sign unfavourable treaties to be able to attract foreign investors. African countries, therefore, are victims of tax evasion by their own citizens and tax avoidance by their foreign investors. Their difference is summarized in Table 12.1. The tax avoidance issue has gained increased attention in recent decades with foreign aid on the decline and foreign investment becoming the preferred mode of transaction with other countries. Political leaders have embraced the notion that tax treaties are beneficial and will contribute to accelerating national development although Treasury officials have often pointed out that costs may exceed benefits. The issue has gained further prominence by the fact that the developed countries—under the auspices of a special programme of the Organisation for Economic Cooperation and Development (OECD) titled “Base Erosion and Profit Shifting”— have questioned the value of tax treaties since their impact tends to be

Table 12.1  The differences between tax evasion and tax avoidance

Purpose Method Effects Impact

Tax evasion

Tax avoidance

Private gain Illicit transfer of money Loss of integrity and revenue Loss of political legitimacy

Corporate gain “Treaty shopping” Rush into questionable treaties Threat to sustainable development

Source: Author and editors

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undercutting the 2030 Agenda on Sustainable Development (Brumby and Keen 2016; Beer and Loeprick 2018). This “race to the bottom” by African governments to secure foreign investment has been detrimental to African countries that rushed to sign tax treaties in the last couple of decades. It must be noted that African countries have not adopted a common stand in the past, and in the case of one country, in particular—Mauritius—it has served as a facilitator of tax avoidance in other African countries. Its national policy has been that as a small island country it can earn revenue by signing treaties with other governments in Africa—and elsewhere—thereby positioning itself as an “entry point” for investors on the African continent. This role of intermediary has enabled Mauritius to shave off a significant portion of the revenue that would otherwise have gone to the African country hosting the investor. It seems that in the case of African governments, these treaties were signed without experience in a rush when foreign direct investments became common in Africa and it was possible to set one country against the other. According to the Mauritius Revenue Authority (2020), the country had signed 46 tax treaties to avoid double taxation, many of them with African governments. These were at different degrees of finalization, some already ratified, others still awaiting signature by the head of state. More recently, however, African countries like Senegal and Zambia have reversed course and opted out of the tax treaties they signed with Mauritius. Rwanda and South Africa have done the same (The Economist, 24 November 2018). There is a more global reassessment of the value of tax treaties to facilitate capital investment. While multinational corporations no doubt will continue to play an important role in the global economy, the heyday of free capital flows seems to be much more in question today. Actors in both developed and developing countries are nowadays ready to accept that both benefits and potential costs arise out of the conclusion of a tax agreement. The decision to negotiate and eventually conclude such a treaty should not be taken lightly (Mutava 2019). The very need to enter and conclude DTAs has recently come under the spotlight with the results of several empirical studies postulating that the revenue loss anticipated after the provision of incentives within these agreements far exceeds the resultant foreign direct investment that actually occurs. There is simply no correlation between the conclusion of a double tax agreement and a subsequent increase in foreign direct investment (Beer and Loeprick 2018). Surprisingly, these findings have not deterred the conclusion of DTAs with at least 3000 of these agreements said to be in

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current operation globally with more in various stages of negotiations (Hearson 2016). These findings have resulted in a significant legitimacy crisis as countries struggle to justify reasons for the conclusion of DTAs. Areas of conflict are particularly rife between the obligations of states under these agreements, on the one hand, and the requirement of fiscal responsibility, on the other, under their constitutions and different domestic laws, even extending to accusations that avenues for tax abuse provided under these agreements result in violation of human rights (Georgopoulos 2004). Particularly as regards human rights, Waris (2013) notes that the recognition of human rights in the fiscal state could help to marshal its development to the ultimate fiscal achievement—the improvement and maintenance of the well-being and social welfare of society, as envisaged by Schumpeter (1942).

Tax Treaty Policy Tax treaties are often an outcome of a series of fiscal compromises from the negotiating partners as countries generally have different motivations when concluding these agreements (Tinhaga 2016). Such motivations may include pressure on governments in the form of diplomatic or political representations or, as alluded to above, the creation of incentives to woo countries which have the superior financial muscle to leverage on these tax benefits and invest into a country (Pickering 2015). Such agreements to allocate taxing rights, therefore, are said to depend primarily on the negotiating powers of the jurisdictions that are parties to these agreements. African governments have often come woefully unprepared for treaty negotiations. The next section will discuss the importance of a tax treaty policy as the foundation on which negotiations can be effectively conducted. Anatomy of Tax Treaty Policy At the onset, it is pertinent to mention that tax treaty policies in most states, although being legal, are not binding per se and consequently cannot bind their treaty partner, only their own negotiators. The documents are intended to act as guidelines that are right and principled encapsulating all issues in and around the area of double tax agreements that a country needs to consider (Rosenbloom 1991). Such policy documents are

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historically developed by the Treasury or its equivalent in the specific state in conjunction or under advisement from their revenue administration. Such policies are not drafted by parliamentary committees because legislators are often regarded as lacking the requisite technical capacity to develop them. Furthermore, because these are sensitive issues of national security, they need to be developed independently of short-term political considerations (Rosenbloom 1991). Such documents, however, are not expected to be kept secret and even how they are written should be in clear enough terms to be understood both by legislators and the general public (ibid.). Commentators have argued that to ensure accountability in the treaty negotiation and conclusion process, the draft treaty should be submitted to an oversight body such as parliament or a committee appointed by it (e.g. Mutava 2019). The basic content of a tax treaty policy would generally delineate what is and what is not appropriate in both the form and content of double tax agreements. In this regard, scholars like Pickering (2015) have argued that the approach is essentially a three-pronged process: (1) establishment of minimum deliverables that the negotiators are bound to include in any treaty negotiation, (2) policy commentary on the most favourable outcomes to expect from the treaty negotiations, and (3) the extent of leeway granted to negotiators on various provisions within these agreements. Even as countries are drafting such policies, it is expected that they be reflective of international treaty norms as well as have regard to their domestic law. Through the authoritative guidance of a tax treaty policy, it is possible to know in advance on exactly which model agreement a country’s tax treaty should be based and the extent to which it would be reflective thereof. Most tax treaties around the world are modelled on either the United Nations Model Convention (UN 2017) or the OECD Model Convention (OECD 2017). Most capital-exporting (developed) countries follow the OECD Model in their DTAs with a few of them introducing deviations borrowed from the UN Model Convention wherever they are favourable. As a rule, capital-importing (developing) countries are encouraged to formulate their tax treaties along with the UN model. The rationale for this recommendation is that the UN model was produced with regard to the peculiar needs of developing countries. Its provisions are adaptable to tax treaties between developed and developing counties allowing the latter stronger tax rights than those provided under the OECD Model (Whittaker 1982).

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Tax Treaty Policy Frameworks in Africa The importance of tax treaty policy documents especially for African countries cannot be overstated as it has been numerously observed that DTAs adopted in these countries are often reflective of the demands of the treaty partner—usually a developed country—and less of their own needs. Notably, African countries began entering into DTAs as far back as 1956 with the conclusion of the tax agreement between South Africa and Zambia (then Northern Rhodesia) being the first of its kind in the region (United Nations Economic Commission for Africa 2016). Mutava (2019) notes that because African states are capital-importing, they increasingly cede most of their taxing rights away through the conclusion of DTAs that are residence-based rather than source-based because the former is viewed as more favourable in their circumstances. She further argues that while the nature of these agreements might be justified as a means of fostering investment in these countries, they typically do not consider other factors that give the negotiators some leverage of their own. Hearson (2015) adds the observation that negotiators from mostly developing countries tend to cede their taxing rights because they are not fully aware of the future implications of some of the provisions they accept. Concerning the specific experience of tax treaty negotiations in Africa, a few things stand out according to Mutava (2019) who has made the most extensive review of the subject. Firstly, the use of DTAs is uneven. Secondly, the degree of success varies and she attributes this to a series of factors, notably the lack of sufficient capacity of treaty negotiators and a similar lack of accountability in the treaty negotiation process due to shortage of requisite expertise to review these agreements in the oversight institutions. Generally, there is little transparency, which is evident, for example, in the negotiations that Ghana, Mauritius, and South Africa are conducting with the three East African countries, Kenya, Tanzania, and Uganda. As this chapter is being written, it has been impossible to get access to the relevant documents because they do not exist in the public domain.

The Case for a Kenyan Tax Treaty Policy Kenya has concluded about 16 double taxation agreements (DTAs) over the last 42 years with a variety of countries ranging from developed states like Canada, Denmark, and France to developing countries, Zambia, and

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Mauritius being amongst them (Waris 2018). Possessing such an expansive treaty network, with continued indications by the Kenyan government that it is still looking to enter into more treaties, it is no surprise that there is no uniform approach regarding format, nature, and provisions within these DTAs. As issues concerning how to tackle illicit financial flows, tax drainage, and the exploitation of developing countries through DTAs are becoming increasingly pertinent, the need for formulating a tax treaty policy, especially for a developing country like Kenya, has never been more apparent. The deficiency in this regard was made clear during the 2019 case concerning the Kenyan-Mauritius DTA (Petition 494 of 2014—Kenya Law). Tax Justice Network Africa, an umbrella group reflecting wider fiscal interests among NGOs, successfully petitioned for the invalidity of the DTA signed between the two countries. Commentators have delineated that the petition was an act of three parts: firstly, the argument that the provisions of the treaty were unconstitutional, secondly that the treaty was invalid under international law, and, finally, that the treaty had not been properly ratified as it had not undergone public scrutiny through a presentation for discussion before Parliament (Waris 2019). Of importance to the present discussion is the first part which concerns the unconstitutionality of the provisions within the agreement. The petitioners argued that the tax incentives given to Mauritius in the treaty would not only erode Kenya’s revenue base by giving companies a legal leeway to shift profits to Mauritius but also possessed a massive potential for treaty abuse (Waris 2019). They argued that through a variety of provisions, the DTA included several avenues through which Kenya could potentially lose significant revenue and the imposition of a minimum five-­ year duration before the treaty could be terminated—an unreasonable condition (Kluwer International Tax Blog 2019). It thus violated the principle of sustainable development, a key national value of Article 10 in the Kenyan Constitution and at the same time Article 201(b) on sharing the tax burden fairly as it would eventually fall back on Kenyans as the state sought funds to run the country’s affairs and development. Nevertheless, in a surprising turn of events, the declaration of invalidity did not mark the end of a Kenyan-Mauritius DTA. Soon after, it was reported that Kenya had entered into a tax treaty with Mauritius surprisingly with similar terms and no substantive overhauls (Michira and Kamau 2019). Against this background, it is evident that a tax treaty policy is not only needed but is very much necessary for Kenya. To this end, to effectively

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bring to the fore this necessity, the deficiencies observed in the invalidated Kenya-Mauritius agreement will serve as the basis for a discussion of what should be done. Motivations As has been mentioned above, the reason why the country seeks to enter into a DTA is very significant as it mandates the negotiators to always ensure that outcomes of the negotiations are aligned to the agenda of the country within that moment and for the future. Negotiators must be aware that DTAs are just as likely to propagate incidences of aggressive tax planning by subjects affected by such an agreement meaning that Kenya could lose a lot of tax revenue instead of the intended outcome of promoting investment and international trade. An appropriate tax policy, therefore, would make it clear what is at stake and provide criteria for negotiators to bear in mind and use as measures of how they are doing. The point is that with the right tax policy in place, those representing Kenya in tax treaty negotiations will be both smarter and more effective. Selection of Treaty Partners The selection of treaty partners is connected to the issue of the motivations around the conclusion of double tax agreements. While Kenya, as suggested above, possesses a healthy network of DTAs with around 16 of them in force, commentators are increasingly putting forward the argument that the clamour to enter into more DTAs is essentially a race to the bottom (Tax Justice UK blog 2017). To be tax competitive, developing countries are particularly affected as they try to give preferential tax concessions to their treaty partners in the hope that it leads to increased foreign direct investment (Hines 2000). This assumption, however, is questionable as it has been recently proven that low rates within DTAs do not subsequently result in higher rates of foreign direct investment (Barthel et al. 2010). The primary concern, therefore, is not the number of DTAs concluded but rather their nature, and it is at this point that the issue of a tax treaty policy becomes especially essential. A tax treaty policy would enable the quest for treaty negotiations to be more selective and based on where the benefits are the highest. As Waris (2018) notes, most of DTAs in force in Kenya have not been concluded with its major trading partners who should ordinarily also be key treaty

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partners considering that double taxation imposes an unfair burden on investments already made and are potentially arbitrary barriers towards the free movement of international capital and goods, as well persons. The formulation of a tax treaty policy, therefore, would assist the country from the outset to identify adequate preconditions for the choice of the treaty partner. It is key to ensuring that the country does not enter an arrangement that produces unintended negative consequences. Further, the policy would allow treaty partners to be aware early on what Kenya’s position is regarding certain issues of concern in negotiations, for example, the establishment of conduit companies and the incentives for foreign investment it can provide. Referring to Kenya’s double taxation agreement with Mauritius, it can be argued that had Kenya had a tax treaty policy that adequately delineated preconditions for the selection of a tax treaty partner, the tax agreement between the two states would most probably never have been concluded. A tax treaty policy would also reduce the risk of extensive treaty shopping (Odari 2015). Mauritius is a tax haven which means that plenty of foreign direct investment is routed through Mauritius. Its conclusion of a DTA with Kenya sadly means that the latter has been added to the list of countries, which multinationals registered in Mauritius can use to reroute profits and thus reduce the benefits of foreign direct investment in the host country (ibid.). The treaty, in essence, undermines the intention of concluding such an agreement, notably to increase FDI, and runs afoul of the spirit of international double tax agreements because it would lead to practices that cause unintended revenue loss not contemplated by the treaty “bargain”. Anticipation of Statutory and Constitutional Changes Had Kenya had a tax treaty policy, it would be in a much better position to alter its proposed tax treaties in line with existing statutory provisions or anticipation of possible statutory alterations. The treaty negotiation process is often long and winding and as such may take place over several years and when eventually concluded may be the subject of a lengthy review. During the period of negotiation, the statutory provisions that directly or indirectly affect the arrangement may change. Existing statutory provisions and anticipated statutory provisions, therefore, must be considered in the tax policy so that it is clear when and how they become pivotal in the treaty negotiation process.

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While it is easier to align a treaty with the current statutory provision, the issue of anticipated statutory changes is murkier because what is anticipated might never occur and thus the treaty consideration accorded to such anticipated statutory change could have potentially detrimental effects on the treaty concluded (Rosenbloom and Langbein 1981). The formulation of a tax treaty policy, therefore, will assist negotiators to have a standard or benchmark for assessing a reasonable probability that legislation substantively or procedurally affecting the treaty will be enacted and what the detrimental effects to the treaty might be if enacted as is. Such a policy would allow the negotiators to be more flexible on certain matters of importance even if there is little or no legislation in the country on the said issue, but legislation is strongly anticipated or at its final stages. Treaty Negotiating Process A major point of concern that has affected a lot of developing countries is the capacity of the treaty negotiators during the negotiating process. Often, most developing countries simply do not have the capacity in terms of personnel to effectively participate in the treaty bargaining process. As a result, they easily get strong-armed into giving away more than they intended through their DTAs. In the process of bilateral bargaining, it is not uncommon that negotiators begin making concessions in the direction of their positions. If they are not fully aware of the implications of certain issues or novel questions that may arise and on which their model (UN or OECD) is silent, negotiators are confined to their own knowledge and experience which rarely is enough to avoid serious impairment of the country’s interests in the future. Accordingly, the formulation of a tax treaty policy will allow the negotiators to begin bargaining on a solid basis and with a clear sense of direction even when models are unclear, silent on certain provisions, or are in stark opposition to the detriment of both parties. Where the negotiators have the discretion to make certain judgements, the treaty policy will enable such judgements to be made based on what the country wants to achieve and not just on any personal inclinations that could eventually affect the overall balance of the treaty bargain. This would also reduce instances where treaty negotiators are bribed to allow certain concessions to these other countries that would not otherwise have been granted. Furthermore, a clear tax treaty policy mandating the roles, functions, and authority granted to each of the treaty negotiators would allow effective

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negotiation of treaties representing the national interest. Treaties would not be similarly copied and pasted from one treaty partner to another as the policy would ostensibly view each treaty as a separate bargain depending on various listed factors and accordingly mandate the negotiators to move forward with this in mind.

Hindrances to the Implementation of Kenya’s Tax Treaty Policy Ultimately, it is clear from the above that a tax treaty policy is a fundamental instrument as it is a representation of the boundaries and allowances that a country imposes and grants, respectively, to itself when entering into the negotiation and the eventual conclusion of DTAs. Essentially, it acts as a proclamation of the country’s position towards certain fiscal issues, the degree of flexibility allowed towards these issues, as well as the declaration of areas where the country would otherwise be positionally immovable as their alteration would have the effect of undermining its position within the arrangement. At this juncture, it is especially fundamental to note that the existence of a tax treaty policy document on its own does not necessarily result in its success. As has been the case in the implementation of several government policies in the country, nothing is easier than sketching majestic plans, nothing more difficult than their actual execution. At this point, it is fundamental to state that indeed numerous quarters have confirmed that Kenya is on course to formulate its tax treaty policy and the paper proceeds fully aware of this fact. Nevertheless, this section seeks to anticipate issues that might impede the actual success of the tax treaty policy upon its completion. These issues include the lack of (1) political will, (2) state commitment, (3) capacity, and (4) transparency. Lack of Political Will Given the benefits of formulating a tax treaty policy as indicated above, one would have thought that such a policy would already be in place in Kenya, but such is not the case. A key issue that has plagued the formulation of tax treaty policies in many developing countries, including Kenya, is the lack of political will to ensure their completion and eventual implementation. The absence of a tax treaty policy gives the executive, charged

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in most countries with concluding DTAs, broad discretion to seek treaty partners and conclude tax agreements. Government, therefore, does not have an incentive to formulate and implement a tax treaty policy. Change of government, each seeking to implement its own policy, as has happened in Kenya, has resulted in the lack of a clear and coordinated path towards the conclusion of DTAs. It is only recently that there has been the requisite political backing to mandate the draft of the treaty policy and it remains to be seen how this will affect Kenya’s future DTAs going forward. Lack of Continuous State Commitment to Policy Upon the formulation of the tax treaty policy, the Kenyan state must remain committed to the continuous implementation of its directives even when there is a change of political guard. As has been stated earlier, change in government often leads to a pursuit of separate fiscal policies as one government may have different priorities from the other, for instance, regarding tax treaties. While it can be assumed that each government will seek to imprint its fiscal policy even towards the conclusion of double tax agreements, such changes should not be allowed to undermine active policy positions but rather complement them in the light of what might be new circumstances. Furthermore, it would be essential for the tax treaty policy document itself to offer provisions on how it can be amended while at the same time ensuring uniformity in the country’s approach towards DTAs. Lack of Appropriate Capacity The effective implementation of government policy is often caused by the lack of appropriate managerial skills and technical capacity. Tax treaties are an increasingly important policy area which calls for skills that go beyond the standard educational qualifications offered by local universities. There is a shortage in Kenya of public servants with the requisite experience and education to effectively manage a national tax treaty policy. It is important, therefore, that government continues to invest in building capacity in this field.

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Lack of Transparency Another important step towards ensuring the success of Kenya’s tax treaty policy would be to ensure that such a policy is formulated in a public and transparent manner. Drafts of such treaties should be made available to the public and should not be a matter shrouded in secrecy (Business Daily 2018). Making such documents public would ensure that negotiators remain accountable and in line with the policy as well as giving members of the public an adequate opportunity to discuss and seek clarifications on the major issues of the proposed negotiating positions.

Concluding Remarks This chapter has drawn attention to a dilemma that affects Kenya, like most other developing countries: the low level of domestic revenue collection in relation to economic development needs. The average 17.5% of GDP that African countries collect every year falls well short of budgetary needs to finance its administrative and developmental needs. It is against this background that foreign aid over the years has played a vital complementary role in financing development in these countries. More recently both donors and recipient African governments have realized that there has been “too much” foreign aid, leading to politically embarrassing levels of aid dependence. In the absence of generous aid flows and growing reliance on foreign direct investment, the issue of effectively earning revenue from corporations investing in developing countries has become increasingly pertinent. The discussion above has focused on demonstrating the role that tax treaties play in the international fiscal space and how a policy for guiding tax negotiations can make them more effective. It has further shown that these treaties have generally been asked to perform multiple, often contradictory, functions ranging from the alleviation of double taxation, the creation of legal and economic certainty for various taxpayers, and the promotion of foreign direct investment. These agreements have often fallen short of promise because they have been asked to deal with too many issues at once. The result is a series of unintentional revenue losses as multinational investors engage in treaty shopping and tax planning through the use of conduit companies to shift profits to low tax jurisdictions.

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There is a growing consciousness in the international community today that many of the ambitious goals of sustainable development to which member states are committed are at risk of being untenable unless there is a fairer deal between developed and developing countries, including taking steps to stop—or at least reduce—existing tax avoidance practices. The OECD programme titled “Base Erosion Profit Shifting” (BEPS) is such a step indicating that international action is needed to reach a better balance between investment incentives and revenue protection in low- and middle-­ income countries. Another measure that the OECD countries have offered is an “Inspectors without Borders” scheme to assist developing countries in strengthening their capacity to monitor and oversee how tax treaties are being implemented. There is even a bold proposal to create a uniform rate of taxing multinational companies regardless of location although the prospect that governments across the world would be able to agree on it seems low. Each developing country, however, must take its own measures. Double taxation agreements, as we have shown in this chapter, are not enough per se. Many such agreements have been signed by African governments, including that of Kenya, but few of them have been effective largely because negotiating skills have been insufficient, and an overall tax treaty policy has been missing. In the Kenyan case, a controversial example has been the double taxation treaty with Mauritius which was signed by President Uhuru Kenyatta despite criticism from both economic and political sources. Tax treaties are crucial to the national economy of Kenya, and it is important that they are signed with a clearly defined national interest in mind. A tax treaty policy should be reflective of current international principles and practices and fine-tuned to reflect the special characteristics of Kenya’s international fiscal space. Such a policy is about to be adopted in Kenya, and part of this chapter has been devoted to showing what should go into such a document and what the hindrances might be to its successful implementation. It can be expected that the issue of tax treaty policy will continue to feature in the Kenyan political discourse.

References Barthel, Fabian, Matthias Busse, Richard Krever, and Eric Neumayer. 2010. The Relationship Between Double Taxation Treaties and Foreign Direct Investment, in M. Lang, P. Pistone, J. Schuch and C. Staringer (eds.), Tax Treaties: Views From the Bridge – Building Bridges Between Law and Economics, 3(May 2014), pp. 3–18. http://ssrn.com/abstract=1756550. Accessed 8 July 2020.

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Beer, Sebastian, and Jan Loeprick. 2018. The Cost and Benefits of Tax Treaties with Investment Hubs: Findings from Sub-Saharan Africa. IMF Working Papers No 18:227, p.  1. Washington, DC: International Monetary Fund. https://doi. org/10.5089/9781484378007.001. Brautigam, Deborah, Odd H. Fjeldstad, and Mick Moore, eds. 2008. Taxation and State Building in Developing Countries. Cambridge: Cambridge University Press. Brumby, Jim, and Michael Keen. 2016. Tax treaties: Boost Or Bane for Development? The IMF Blog. https://blogs.imf.org/2016/11/16/tax-­ treaties-­boost-­or-­bane-­fordevelopment/. Accessed 22 July 2020. Business Daily. 2018. Public Participation Can’t Be Overlooked in Tax Policy Making, March 24. https://www.businessdailyafrica.com/analysis/column i s t s / P u b l i c p a r t i c i p a t i o n -­c a n ’ t -­b e -­o v e r l o o k e d -­i n -­t a x -­p o l i c y -­ making/4259356-­435720613180k2z/index.html. Georgopoulos, Theodore. 2004. Tax Treaties and Human/Constitutional Rights: Bridging the Gap. Reims, France: University of Reims. Global Financial Integrity and African Development Bank. 2013. Illicit Financial Flows and the Problem of Net Resource Transfer from Africa: 1980–2009. Abidjan: African Development Bank. Hearson, Martin. 2015. Tax Treaties in Sub-Saharan Africa: A Critical Review. Working Paper. Nairobi: Tax Justice Network. https://www.academia. edu/18853007/Tax_treaties_in_Sub-­S aharan_Africa_A_critical_review. Accessed 14 July 2020. ———. 2016. Measuring Tax Treaty Negotiation Outcomes: The Action Aid Tax Treaties Dataset, SSRN Electronic Journal. Elsevier BV. https://doi. org/10.2139/ssrn.2744547. Hines, James R. 2000. Tax Sparing and Direct Investment in Developing Countries. In International Taxation and Multinational Activity, ed. J.R.  Hines, 39–71. Ann Arbor, MI: University of Michigan Press. https:// www.nber.org/chapters/c10719.pdf. Accessed 8 July 2020. Kluwer International Tax Blog. 2019. When Is a Tax Treaty Not a Treaty?, April 12. http://kluwertaxblog.com/2019/04/12/when-­is-­a-­tax-­treaty-­not-­ atreaty/?doing_wp_cron=1594024666.9928390979766845703125. Accessed 8 July 2020. Levi, Margaret. 1988. Of Rule and Revenue. Berkeley, CA: University of California Press. Mauritius Revenue Authority. 2020. https://mra.mu/index.php/taxes-­duties/ international-­taxation/double-­taxationagreements. Accessed 25 July 2020. Michira, Moses, and Macharia Kamau. 2019. Mauritius Deal: Did Uhuru Go Against Taxation Court Order? The Standard, April 13. https://www.standardmedia.co.ke/business/article/2001320735/uhuru-­r e-­s igns-­t axdeal-­ with-­mauritius-­quashed-­by-­court. Accessed 8 July 2020.

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Mutava, Catherine N. 2019. Review of Tax Treaty Practices and Policy Framework in Africa. Paper Presented at the European Association of Development Research and Training Institutes, Held in Bergen, Norway, 20–23 August. www.ictd.ac/publication. Accessed 8 July 2020. Odari, Edgar. 2015. Tax Drainage: Kenya/Mauritius DTA and Its Potential Impact on Tax Base Erosion in Kenya. Nairobi: Tax Justice Network – Africa. OECD. 2017. Model Tax Convention on Income and on Capital 2017. OECD. http://www.oecd.org/ctp/treaties/2017-­update-­modeltax-­conven-­ tion.pdf. Accessed 5 February 2020. Petition 494 of 2014  – Kenya Law. 2014. http://kenyalaw.org/caselaw/cases/ view/169664. Accessed 14 May 2020. Pickering, Ariane. 2015. Why Negotiate Tax Treaties in United Nations. Papers on Selected Topics in Negotiation of Tax Treaties for Developing Countries. Geneva: United Nations. https://doi.org/10.18356/9b6574be-­en. Accessed 8 July 2020. Rosenbloom, H. David. 1991. Toward a New Tax Treaty Policy for a New Decade. American Journal of Tax Policy, 9. https://heinonline.org/HOL/ Page?handle=hein.journals/ajtp9&id=83&div=&collection=. Accessed 14 July 2020. Rosenbloom, H. David, and Stanley I. Langbein. 1981. United States Tax Treaty Policy: An Overview. Columbia Journal of Transnational Law 19: 359–406. Schumpeter, Joseph. 1942. Capitalism, Socialism and Democracy. Floyd, VA: Impact Books. Smith, Dan Throop. 1959. The Functions of Tax Treaties, National Tax Journal, vol 12, no 4, pp. 317-327. https://search.proquest.com/docview/20716784 2?accountid=14511%0Ahttps://uclnew-­primo.hosted.exlibrisgroup.com/ openurl/UCL/UCL_VU2?url_ver=Z39.882004&rft_val_fmt=info:ofi/fmt:k ev:mtx:journal&genre=article&sid=ProQ:ProQ%3Aabiglobal&atitle=THE+F UNCTIONS+OF. Accessed 14 July 2020. Tax Justice UK Blog. 2017. Tax Games – The Race to the Bottom. https://www. taxjustice.uk/blog/tax-­games-­the-­race-­to-­the-­bottom. Accessed 8 July 2020. The Economist. 2018. Tit for Tax: Treaty Shopping Is Going to Get More Expensive, November 24. Tilly, Charles. 1990. Coercion, Capital and European States, AD 990–1990. Cambridge, MA: Blackwell. Tinhaga, Zachee P. 2016. From Avoiding ‘Double Taxation’ Yesterday to Avoiding ‘Double Non-Taxation’ Today: The Urgent Need for an International Tax Regime Based on Unitary Tax Principles, SJD Dissertation. Ann Arbor, MI: University of Michigan. https://repository.law.umich.edu/sjd. Accessed 8 July 2020.

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UN. 2017. Financing for Sustainable Development. United Nations. https:// www.un.org/esa/ffd/publications/model-­double-­taxationupdate-­2017.html. Accessed 5 February 2020. United Nations Economic Commission for Africa. 2016. Investment Policies and Bilateral Investment Treaties. Addis Ababa: UNECA. https://www.uneca. org/sites/default/files/PublicationFiles/eng_investment_landscaping_study. pdf. Accessed 14 July 2020. Waris, Attiya. 2013. Tax and Development: Solving Kenya’s Fiscal Crisis Through Human Rights: A Case Study of Kenya’s Constituency Development Fund. https://www.researchgate.net/publication/318587424_Tax_and_development_Solving_Kenyas_fiscal_crisis_through_human_rights_A_case_study_of_ Kenya’s_constituency_development_fund. Accessed 16 October 2019. ———. 2018. How Kenya Has Implemented and Adjusted to the Changes in International Transfer Pricing Regulations: 1920–2016. SSRN Electronic Journal. Elsevier BV. https://doi.org/10.2139/ssrn.3120551. ———. 2019. Towards an African and Kenyan Philosophy of Fiscal Legitimacy, Financing for Development, vol 1, no 1, pp. 33-46. http://uonjournals.uonbi. ac.ke/ojs/index.php/ffd/article/view/248. Accessed 17 July 2020. Whittaker, Donald R. 1982. An Examination of the O.E.C.D. and U.N. Model Tax Treaties: History, Provisions and Application to U.S. Foreign Policy, North Carolina Journal of International Law and Commercial Regulation, vol 8, no 1, pp. 39-60. http://scholarship.law.unc.edu/ncilj/vol8/iss1/4. Accessed 17 July 2020.

CHAPTER 13

Institutions and Policy Reforms in Kenya: From State to Regime Focus Patrick O. Asingo

Introduction The centrality of institutions in politics and the public policy process is no longer in doubt. Dating back to Aristotle’s original institutionalism, through the comparativist emphasis on formal-legal institutions of government, to the new institutionalism that emerged in the late 1970s and the early 1980s, the spirit of institutionalism has endured over the years and has permeated the social sciences. In fact, its significance has grown in the last couple of decades as evident in the awarding of the Nobel Prize in Economics to two institutionalist scholars: in 1993, Douglas North, considered as “one of the most influential scholars in institutional studies across the social sciences” (Baimyrzaeva 2012, p. 189), and Elinor Ostrom 2009, best known for her critique of the “tragedy of commons” paradigm (Ostrom 1990). Both have had an influence outside their core discipline Patrick O. Asingo has deceased at the time of publication. P. O. Asingo (Deceased) (*) Nairobi, Kenya e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 G. Onyango, G. Hyden (eds.), Governing Kenya, https://doi.org/10.1007/978-3-030-61784-4_13

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and feature as standard figures in the policy sciences at large. As these two Nobel Laureates emphasize, policy institutions matter because they define and structure the policymaking framework, thus influencing policy outcomes. Moreover, since these frameworks vary, they produce outcomes that affect groups in society differently. While the concept of institution connotes stability and longevity, it is important to acknowledge that behind every institution is the human mind. The durability of a given institution is ultimately dependent on human perceptions. Its default position, therefore, is not necessarily continuity. As Berk and Galvan (2009) have argued, institutions are living organisms that need to be continuously regenerated through creative deliberations. This approach to institutional analysis implies that through public discourse, institutions change as the result of broader shifts in society, be they sudden or incremental. The notion that an institution cannot be taken for granted and that it has its own internal dynamic driven by both formal and informal considerations is especially relevant for understanding the changes in policy frameworks that have occurred in Kenya since independence. Based on the country’s experience, this chapter divides the post-independence period into two phases, the first focusing on making the state more effective and the second making the regime more legitimate. Following this conceptual discussion, the chapter traces institutional reforms carried out by the individual governments that have been in power since 1963. It concludes with reflections on the experience of reforming policy institutions in Kenya.

Institutional Reform: State or Regime? A widely used definition of institutions is that they are “humanly devised constraints that shape human interactions” (North 1990, p. 3), or as Greif (2006, p. 30) puts it, “a system of rules, beliefs, norms, and organizations that come together to generate regularity of social behaviour”. An institution, therefore, is “a relatively enduring collection of rules and organized practices, embedded in structures of meaning and resources that are relatively invariant in the face of turnover of individuals and relatively resilient to idiosyncratic preferences and expectations of individuals and changing external circumstances” (March and Olsen 2006, p. 3). The standard definitions, as can be seen above, emphasize regularity and continuity, yet in the literature on developing countries, institutions are also expected to change—even being sources of change. This means that research on

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institutions in these countries tends to be more ambiguous in its treatment of the concept. This research suggests that institutional durability is underestimated by some and overestimated by others. The former category is typically those with a mandate to propose reforms, especially management consultants, who rely on being able to sell their ideas. Their mistake shows up in the conflation of “organization” and “institution” (Scott 2014). The former is a managerial concept referring to how people are organized in specific roles to effectively achieve a common objective. The latter is a sociological concept that refers to the norms and rules that facilitate or hinder collective action. An organization can be changed with the stroke of a pen, while the norms and rules are much more difficult to change. As Andrews (2013) noted in his review of institutional reforms in developing countries, failure to acknowledge this difference has been a major reason why reform efforts have stranded. Those who overestimate institutional durability do so because they tend to overlook the fact that institutions are living organisms which reflect the predispositions of those who share a set of norms or rules. For example, individuals who occupy positions in public institutions typically mix formal and informal rules as they go about their daily chores. That is why Berk and Galvan (2009) argue that people do not live “under the law” but are actually “playing” it in the sense that they improvise, sometimes with positive, other times negative, outcome. In their view, institutions cannot be taken for granted and must be continuously kept alive through public discourse. Because institutions are foundational, change is typically incremental and may take time to become noticeable, although a dramatic event that shakes up society and a political “champion” with charismatic qualities are reasons why the change process might be accelerated. For example, the outbreak of civil violence tends to affect society sufficiently for a change in institutions to occur. Many African countries became independent under the leadership of a young militant leader ready to put an end to colonialism and bring about a new social and political order. Kwame Nkrumah and Julius Nyerere may be described as the quintessential example of leaders who seized the momentum at a “critical juncture” in the hope of laying the foundation for new institutions and reforming others. They strived for a transformative change based on norms and principles borrowed from socialist thinkers. The Kenyan scenario is different. The leader that Kenyans chose was an old man who had lived in exile for a long time. He was not a “firebrand” for radical change; nor did the struggle preceding independence generate

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Table 13.1  Differences between the use of state and regime in policy studies

Level of analysis Focus of analysis Analytical concern Evaluative objective

Regime

State

Politics Process Legitimacy Fairness

Policy Outcome Effectiveness Justice

Source: Author

a common radical agenda. The result is that there were only faint calls for regime change. Instead, the focus was initially on ensuring state effectiveness. This involved institutional reforms but typically of a managerial type. It was only after the attempts to reform state institutions had run out of steam and an evident decline of the state-led approach, that calls for a new order began to echo louder. The story is told in greater detail in the next section. Before moving on to the Kenyan case, it is helpful to summarize the main features of the two key concepts: state and regime as illustrated in Table 13.1.

The Kenyan State 1964–1992: Reforms, Then Decline The first three decades after independence tended to be politically volatile across Africa. Countries, where leaders aimed for a social transformation, suffered most. They raised popular expectations and threatened groups vested in the status quo without being able to rely on material conditions that could sustain a far-reaching social change. Modibo Keita of Mali and Kwame Nkrumah of Ghana were among those deposed by military coups. Among those who were not, their policy record soon showed up as a failure, Julius Nyerere and his ujamaa experiment being the most conspicuous. Countries like Kenya which opted for a more incremental approach were not spared spurts of instability, but it was moreover not being radical enough than too “revolutionary”. Yet, it is important to remember that the political discourse at the time in Africa, regardless of whether the government was radical or moderate in its policy ambitions, was about development, not democracy. Like in other countries, the policy discourse was about “growth versus distribution” (Barkan and Okumu 1979). Below is

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a chronological account of the reforms that were made to strengthen the state and its role in national development and how eventually it suffered a decline beyond redemption. The Jomo Kenyatta Era, 1963–1978 The first few years of independence were dominated by the debate about what the constitution the country should have. To present a united front against the British in the Lancaster House negotiations that preceded the granting of independence in December 1963, representatives of the leading political parties—KANU and KADU—engaged in a compromise that involved a federalist set-up, what became known in Kenya as the Majimbo Constitution. This constitutional arrangement dispersed state power across a three-tier system of government, consisting of the central government, eight regional governments, and local authorities. It also created a bicameral national legislature, consisting of the Senate and House of Representatives. Most of the functions delegated to regional governments, however, had not even been transferred by the time that this quasi-federal structure was dismantled in 1964. A major reason why the incumbent KANU government unilaterally decided to invalidate the federalist arrangement was what happened in Congo-Leopoldville (now the Democratic Republic of the Congo) where the civil war that broke out at independence was blamed on the federal structure of its government. Those in power in Nairobi used this and other examples to centralize control in the interest of national unification. There were questions at the time about the loyalty of the country’s ethnic groups but also a fissure caused by disagreements about which side Kenya should choose in the Cold War—the United States or the Soviet Union? One of the first steps that the new government took, therefore, was to have KANU issue a party manifesto in which Kenya rejected Western capitalism and Eastern communism and instead chose “positive non-alignment” within the context of African democratic socialism (Republic of Kenya 1965). The domestic policy debate after independence was also shaped by two other questions: (1) what to do with the institutions inherited from the colonial administration, and (2) how to accelerate national development? The premise for this debate was that colonial institutions had not really been developmental enough. State institutions, therefore, had to change. As Aseka (2004, p. 6) put it, “the colonial state [in Kenya] was authoritarian in its institutionalization of structures of economic control,

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deprivation and exploitation and also of political manipulation and marginalization”. For example, institutions like the provincial administration were mainly geared towards tax collection, maintenance of law and order, and suppression of dissent. Upon the attainment of independence, these institutions, therefore, needed to be reformed to play a more effective role within the context of development administration. The government decided that this reform of the public service should be guided from the centre. The Constitutional Amendment No. 16 of 1969 confirmed this by codifying that the president is in control of the public service (Nasong’o 2007). As one observer noted, Kenyatta’s position as the founding father, bolstered by tight political control in many spheres, made him an overriding institution in himself (Warwick 1979, p. 306). The government’s answer to the question of how to accelerate national development was Sessional Paper No. 10 of 1965 on African Socialism and its application to planning in Kenya. The concept of development planning was fashionable in developing countries and was deemed useful not only in countries following a socialist path of development but also in others which based their strategy on a mixed economy as outline in Sessional Paper 10. Development planning fitted well into the new government’s strategy of state-led development. Because the private sector was weak and dominated by settlers and international companies, it was natural that the state would play a leading role. It manifested itself in two important ways. The first was the emergence and growth of planning as a management tool across government entities. The second was the use of commissions of inquiry to improve and monitor the performance of the public service. As part of institutional centralization in the immediate post-­ independence era, and with donor support, “the Kenya government adopted a centralized top-down planning system, whereby planning for development was done at the top and decisions passed downwards” (Opata 2004, p. 43). Under this elaborate structure, planning was done within five-year broad policy frameworks known as development plans with coordination by the ministry responsible for planning (ibid., p. 43). The planning division was quite elaborate, with three units— Administration, Statistics, and Planning. The administrative division’s primary responsibility was to maintain liaison with the president and the ministries of finance and foreign affairs so that planning would be coordinated with budgetary policy and foreign economic assistance (Kaplan et  al. 1967, p.  424). The Statistics unit was to provide statistical data, while the Planning unit put the plans together. In 1965, a Cabinet

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Development Committee was set up with membership from ministries handling development issues, headed by the Minister for Planning and Economic Development. The Committee had powers over “general review of plans and implementation, determination of priorities among projects, consideration of new proposals and recommendations of changes in plans in progress” (Goldsworthy 1982, p. 257). It was later reconstituted in 1967 as the Council of Economic Ministers under the vice-­ president. Its proposals adopted by the full Cabinet became public policy. A planning implementation unit was eventually also created to set sectoral and district targets (Kaplan et al. 1967). In line with the state-led development paradigm, the First Five-Year Development Plan (1966–1970) advanced an import substitution industrialization policy programme and sought to diversify the economy from its agricultural base. It also ensured the continuation of the Swynnerton Plan which was then described as “the largest program of its kind in post-­ war Africa” (Osborne and Kent 2015, p. 184). The plan emphasized state control of the agricultural sector through the licencing of those who enter the cash crop sectors, marketing of imports, and providing support to farmers. It has been argued that the plan was hurriedly put up “to give potential donors of economic foreign assistance some notion of the new government’s attitude and role in the economy and hopefully, thereby to encourage foreign government aid and private foreign investment” (Kaplan et al. 1967, p. 424). This partly explains why it had to be revised in an equally hurried manner in 1966 to accommodate the Sessional Paper No. 10 of 1965 and, give details of state control and Africanization of land. The Second Development Plan (1970–1974) and the Third Development Plan (1974–1978) did not advance any strategic policy shift as they continued to advance state-led development policies. As Peters (1989, p. 4) has argued, formal statements about government intentions to solve problems and how they intend to go about it are important as they affect the lives of citizens, a point that is also reiterated by Anderson (2006, p. 7). This emphasis on purpose action, however, also justified a centralization of power in the hands of the president. The opposition party, KADU, dissolved itself and joined KANU in December 1964, the Senate was abolished in 1966 leading to a unicameral legislature, and in 1969 the opposition party, Kenya People’s Union (KPU), was banned. As already detailed in Chap. 5 of this volume during Jomo Kenyatta’s reign, the legislature and the judiciary became generally subservient to the executive and specifically so to the president as a person, not the institution. In

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the parliament, “both new candidates and incumbent MPs were pressurized to refrain from criticizing Kenyatta’s policies and warned against raising sensitive issues [and] regulations were passed limiting freedom of assembly and freedom of speech” (Sabar 2002, pp. 160–61). Policies were increasingly made through presidential decrees as happened in 1971 when he decreed free primary education for children in economically marginal areas, which included districts like Garissa, Marsabit, Mandera, Wajir, Lamu, Samburu, Turkana, West-Pokot, and Tana River. In December 1973, another presidential decree made education free for all children in the first four years of primary education. The second management tool was presidential commissions of inquiry. President Jomo Kenyatta recognized at independence that education was critical both for rapid socio-economic development and Africanization of the public service. Hence, the first commission appointed by the president immediately after independence was the Ominde Commission of 1964 on education. The Ominde report noted that “at the present stage of the development of the country, secondary education was not only the place of education for higher responsibility; it is also the door to the modern world [and] has become almost a symbol of modernity” (Republic of Kenya 1964, p. 68). The report abolished the racially stratified education system, stressed technical education, created seven-year continuous primary school education, and discouraged rapid expansion of education without a corresponding expansion of resources. It influenced the education policies throughout the Kenyatta era and beyond. The other notable presidential commission appointed by President Jomo Kenyatta was the Commission of inquiry on Public Service Structure and Remuneration of 1971, popularly known by the name of its chairman as the Ndegwa Commission. It was set up to “transform the public service from an organization merely geared to administering public affairs into an instrument of development management” (Republic of Kenya 1971). The Commission which sought to incentivize the public service for greater efficiency faced a dilemma. It noted that the public service was poorly remunerated and demoralized, yet the government could not afford higher wages for the bloated workforce. To wriggle through this dilemma, the Ndegwa Commission allowed public servants to engage in private business for extra income. The Commission outlined several conditions under which public servants could run a private business. For instance, public servants were expected to give public service undivided loyalty, subordinate their private interest to their public duties, and avoid conflict of

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interest between their public and private interests. They were also expected to maintain professional and ethical standards befitting their duties and execute their public duties with efficiency, integrity, and impartiality. It also called for the creation of an Ombudsman office to investigate acts of partiality or abuse of office by public servants. In addition, the fixed salaries system would be replaced by an incremental scales system where raises are automatic but based on a performance appraisal. The Commission Report concluded that with these safeguards, public servants could own property or businesses. The report was adopted by the government as Sessional Paper No. 5 of 1974 without these safeguards. This omission had disastrous consequences as corruption became rampant in the public service. To be fair, one analyst stressed, “corruption and conflict of interest in the upper levels of state management was a reality in Kenya before the Ndegwa report” (Himbara 1994, p. 122). For example, the Controller and Auditor General reported 188 cases of theft by public servants involving £10,160 in 1963; by 1966, this had risen to 356 cases involving £34,720 (Odhiambo-Mbai 2003). Yet, Himbara concluded that “no single policy decision in Kenya contributed so much to the decline of fiscal discipline and the undermining of the Kenyan state apparatus in general, as that to set up the 1971 Ndegwa Commission” (ibid., p. 124). The First Phase of the Moi Era, 1978–1992 When Jomo Kenyatta died in 1978, his Vice-President Daniel arap Moi was the legitimate successor. His appointment, however, was initially contested within the KANU leadership. It was eventually secured but only after Moi had promised to follow in Kenyatta’s footsteps—Nyayo in Kiswahili. His first years in power were indeed characterized by reliance on the centralized authoritarian state that Kenyatta had built. He also continued Kenyatta’s tradition of using commissions of inquiry as a policymaking tool and set up the Civil Service Review Committee in 1979. Its report, known as the Waruhiu Report (Republic of Kenya 1980), called for labour-intensive technology to alleviate unemployment; setting a ceiling on the amount of land that anyone can own; strict enforcement of public service code of conduct; and the introduction of a five-day working week. The Report further called for the strengthening of the Ministry of Economic Planning to enhance long-term strategic planning, keeping the civil service expansion to a bare minimum, and, curiously, preventing all members of the Public Service from making statements indicating or

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implying that the government has infinite means of providing for needs. Another notable recommendation by the Waruhiu Committee was to place the Permanent Secretary to the Treasury one job-group above other Permanent Secretaries. The Committee Report became Sessional Paper No. 10 of 1980 on the Acceptance and Implementations of the Recommendations of the Civil Service Review Committee, 1979/1980. After a few years in power, things turned to the worse in 1982 when President Moi faced two major political challenges. Firstly, some of his opponents and critics wanted to form an alternative political party. Secondly, even more seriously, there was an attempted coup against President Moi’s Government on 1 August that year. These political challenges changed President Moi in two significant ways that would later shape his management of public affairs and public policy. Firstly, they transformed him into an even more ruthless autocrat. He transformed Kenya from a de facto to a de jure one-party state in 1982. Furthermore, the provincial administration was co-opted into KANU’s internal party organization. He became so intolerant that “those perceived to be against the President and KANU policies were denied the right to contest electoral seats” (Korwa and Munyae 2001, p.  3). In fact, “to ensure his grip on power, Moi systematically usurped the functions of the other institutions of governance to the extent that the principle of the separation of powers was rendered ineffectual” (ibid., p. 2). He weakened judicial independence through constitutional amendments, especially Act No. 14 of 1986 and Act No. 4 of 1988. The amendments removed security of tenure of the Attorney General, Controller and Auditor General, and the upper chamber judges. The amendments also granted the president the power to appoint the chief justice on the recommendations of a Judicial Services Commission appointed by the president (Korwa and Munyae 2001). In the circumstances, “both Parliament and the Judiciary ceased to have the constitutional rights to control the excesses of the executive [and] there were no checks and balances on Moi’s personal authority” (ibid., p.  4). Through the Constitutional Amendment No. 14 of 1986, Moi removed the security of tenure of the Comptroller and Auditor-­ General among other constitutional oversight offices, thereby transforming the Kenyan state from an ‘imperial presidency’ under Kenyatta to a personal state under Moi (Nasong’o 2007). Secondly, these challenges fuelled Moi’s desire to walk out of Kenyatta’s shadow and chart a path of his own. For instance, he decided to depart from Kenyatta’s centralized institutional structure by setting up

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decentralized administrative structures. He made his intentions known during Kenyatta day celebrations speech on 20 October 1982, where he noted: “We will henceforth be looking upon each district as the basic operational unit [and] each district will become the major instrument for the design and management of rural development” (Weekly Review, 28 October 1982). This focus on the district as the fulcrum in the design and execution of local development was not new. The donor-driven Special Rural Development Programs (SRDPs) of the 1960s were experimental and designed to cover only 14 selected rural areas, but they laid the foundation for the District Development Committees (DDCs) which became the core of the District Focus for Rural Development (DFFRD) policy that Moi made government policy in July 1983. The political rhetoric justifying the renewed district focus implied enhanced local participation and a shift from a top-down to a bottom-up policy process. In practice, however, little of this took place. The core institution was the District Development Committee (DDC), and it was chaired by the District Commissioner, a KANU loyalist. Furthermore, its membership was large, typically over 60 people with three quarters being civil servants, which rendered it ineffective as a bottom-up instrument (Rukwaru 2019, p. 206). To this should be added factors like an inadequate local planning capacity, a lack of public awareness, and insufficient resources for policy implementation. In short, the policy did not change much. This phase of the Moi era coincided with what Baimyrzaeva (2012) refers to as the second wave of public sector institutional reforms which, according to him, occurred in the 1980s and the early 1990s, led by the donor community, especially the IMF and the World Bank. It was characterized by calls for governments to cut the size of the civil service, reduce their control over the public sector, and open it up to market forces. In fact, at the time that Moi came to power in 1978, Kenya faced a serious economic crisis characterized by a balance of payment issues, inflation, slow economic growth, and an ensuing increase in unemployment as well as widening income inequality. These macroeconomic problems were attributed to a weak policy framework. By the close of the 1970s, economic observers generally agreed that Kenya needed to institute major structural policy changes to stabilize the economy and to restore a reasonable rate of economic growth in a changing domestic and increasingly hostile international environment (Mwega and Kabubo Mariara 1993, p.  27). Kenya became one of the first African countries to qualify for a

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structural adjustment loan from the World Bank in 1980 aimed at correcting the economic imbalances and introducing institutional reforms for sustainable and balanced growth (ibid., p. 28). These reforms marked a paradigmatic shift from state control to economic liberalism and were domesticated through Sessional Paper No. 1 of 1986 on Economic Management for Renewed Growth. They brought an end to the state-led approach to development that prevailed in the first 25 years of independence (Murunga 2007).

The Shift to Regime Focus, 1992 to Date The policies that were introduced by the Moi Government in the 1980s affected not only the public sector but also the citizenry. Services that had been free were now to be paid for—at least in part. Cost of living shot up and made it more difficult to sustain comfortable livelihoods. Public expression of dissatisfaction faced government repression. The issue was no longer merely a matter of making the state more effective but reforming state-society relations in ways that enhanced citizen input. There was a pent-up demand for freedom that had never been fully realized but which in the late 1980s and early 1990s found expression in calls for multi-party democracy. Kenyans wanted a different political order. The Second Phase of the Moi Era, 1992–2002 The Moi Government found itself with little choice but to respond to the demands for multi-party democracy. The one-party state came to an end in 1991 when the multi-party system was reintroduced. The first election was held the following year and President Moi and KANU won, albeit with only a minority of seats in parliament. The most important immediate change was in parliamentary oversight, mainly through its two watchdog committees—the Public Accounts Committee (PAC) and the Public Investments Committee (PIC) which previously had been ineffective. With the strengthening of parliament, its Standing Orders were changed to allow the opposition to have more members in PAC, and to have it chaired by the official leader of the opposition. PAC was also granted leeway to continue with its business even when parliament is prorogued or adjourned. Not surprisingly, President Moi had difficulty accepting the new order and tried to circumvent the established institutions. For instance, “at a

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workshop held at Mbagathi (Nairobi) in April 1995, Judges Bena Lata and William Mbuya accused the government of interfering in cases that were then in court” (Korwa and Munyae 2001, p. 4). The bureaucracy also remained excessively large, highly hierarchical, and monopolistic to lead and implement public policy efficiently and effectively. Unlike before, however, policymaking was no longer viewed as only a government matter. Groups of citizens and key stakeholders joined parliament in public debates and organized efforts to influence policy outcomes. Norms had changed as evident in the Civil Service Reform Program (CSRP) that was rolled out in 1993. Policy frameworks in this period were extensively influenced by the global efforts to promote a sustainable form of development, notably Agenda 21, which was reflected in the three national development plans that were adopted in the 1990s and early 2000s. The ninth such Plan (2002–2008) was especially clear about the importance of a participatory approach to development through strategies that would revamp the District Focus for Rural Development. Implementing this participatory framework ran up against bureaucratic routines and patronage politics, leaving the emerging new political order far from complete. The Kibaki Era, 2002–2012 KANU lost the elections in 2002 and a new government presided over by Mwai Kibaki, a seasoned leader with long experience of public service. The post-Moi era began with an ambitious effort to transform the public sector. The Economic Recovery Strategy for Wealth and Employment Creation for 2003–2007 (ERS) was launched by the Ministry of Planning and National Development in June 2003. It redefined the role of government to that of facilitator rather than an engine of development. It noted that “policy focus during the recovery period will be increasingly on the small business enterprises” (Republic of Kenya 2003). While seemingly building on and refining previous policy progress, mainly, the intentions of the ninth National Development plan, ERS set out the broad policy and institutional road map through which Kenya was to be managed during President Mwai Kibaki’s first term in office. The ERS had four key pillars, namely, (1) macroeconomic stabilization, (2) strengthening institutional governance, (3) expansion of infrastructure, and (4) investment in human capital. Upon the expiry of ERS in 2008, the government launched a new long-term development strategy, Kenya Vision 2030 with its own three key pillars—the economic, social, and political—as illustrated in Table 13.2.

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Table 13.2  The three pillars of the Vision 2030 Pillars

Policy aspirations

Social

Social cohesion and improved human capital

Economic

Political

Sectors of focus

Education and training, health, housing, water and sanitation, environment, urbanization and gender, youth, sports, and culture Economic Agriculture and livestock, wholesale transformation and retail, trade, manufacturing, tourism, financial services, business process offshoring, and IT-enabled services Democratic system Decentralization, capacity building of local authorities

Enabling governance principles Constitutional reform; sovereignty of the people; gender equality; national values; goals and ideology; a bill of rights; a viable political party system; public participation in governance; separation of powers; and decentralization. Source: Author

Unlike his predecessors, President Kibaki gave huge latitude to his cabinet ministers to independently interpret the ERS into sectoral policies within their respective ministries. This enabled several of them to undertake institutional reforms even before the Privatization Act No. 2 of 2005 took effect. The Ministry of Water, for instance, enacted numerous water sector reforms, which among others created the Water Resources Management Authority. These reforms were intended to separate water and sanitation policymaking roles from sector regulation and water and sanitation service delivery (Asingo 2008). The Ministry of Transport introduced far-reaching transport policy change under the Legal Notice No. 161 of 2003. President Kibaki also oversaw the creation of the Constituency Development Fund (CDF) in 2003, an initiative that came out of a private motion in parliament. In the original CDF design, 2.5% of government revenue was disbursed to all constituencies based on their poverty levels. A court, however, subsequently ruled that CDF as originally designed was unconstitutional since it allowed legislators to become both policymakers and policy implementers, thereby undermining the doctrine of separation of powers. Consequently, the fund underwent considerable restructuration and reorganization by 2016. CDF further shifted development from the district to the constituency level.

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Perhaps the most important institutional reform under the Kibaki era was the enactment of the 2010 Constitution that ushered in foundational structures, namely devolved governance, aspired in the Vision 2030. It confirmed the transition from a focus on the state to regime acknowledging that policymaking is not a privilege of government only but a right that citizens of Kenya also should be able to enjoy. Fully putting the principles of the new constitution into practice requires time. It started in earnest in 2013 and much remains to be fulfilled. The Uhuru Kenyatta Era, 2013 to Date President Kibaki stepped down after two terms in 2013 after another contender, Uhuru Kenyatta, son of the first president, was able to cobble together a winning coalition. Implementation of the 2010 Constitution, therefore, has fallen in the period after Uhuru Kenyatta took over the reins of government in 2013. As discussed further also in other chapters of this volume, the new constitution altered the institutional architecture in several fundamental ways. To begin, it introduced a devolved system of governance by subdividing the country into 47 counties. This effectively dispersed the policymaking and implementation powers between the national government and the county governments, with the latter focusing on policies for devolved functions such as health and agriculture. Some county governments have been more innovative than others, but the devolution is generally appreciated by Kenyans, whether they are active in politics or not. An example of the success that is often mentioned is the Makueni County Government which has developed an innovative universal healthcare policy programme known as MakueniCare. It was adopted in October 2016 and since then has been providing free healthcare to all citizens in the county (Gathara 2008). The 2010 Constitution also led to the creation or strengthening of several commissions and independent offices with policy powers. For example, it created the Ethics and Anti-­ Corruption Commission (EACC) to replace the Kenya Anti-Corruption Commission (KACC), which had been created in 2003  (see Chap. 9 in this volume for a further discussion). The primary goal of EACC is to deal with the implementation and monitoring of policies relating to corruption and economic crimes as outlined in the Anti-Corruption and Economic Crimes Act, 2003. President Uhuru Kenyatta has also introduced a new dimension to policymaking in Kenya, namely, a direct translation of the political party

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campaign manifesto to public policy without subjecting it to the legislative process. For example, he has issued executive orders that essentially turn the country’s Vision 2030 into a political party platform. Hence, the second Medium Term Plan of the Vision 2030 is presented as an outline of the policies, programmes, and projects that the President intends to pursue during his first term. Most important in this context was his announcement during the 2017 Jamhuri Day celebrations of his Big 4 Agenda to address the country’s most pertinent policy problems: food security, affordable housing, manufacturing, and affordable universal healthcare. In short, Uhuru Kenyatta has set an ambitious agenda for himself and his government which makes him vulnerable politically if resources fall short because of  high  levels of corruption and other forms of bad governance that are likely to undermine implementation of the agenda. A few such incidents have already been happening. For example, concerning the crucial Galana-Kulalu irrigation project, the Auditor General’s Report for 2017/2018 noted problems of single sourcing of contractor and conflict of interest. The One-Child Laptop policy proved too difficult to implement and was abandoned in favour of constructing and equipping school computer laboratories, as the Ministry of Education Principal Secretary, Belio Kipsang, confirmed in a hearing before the Education Committee of the National Assembly in 2017 (Wanzala 2019).

Conclusion This chapter has traced the institutional changes that have taken place in Kenya since independence focusing on shifting policy frameworks and institutional arrangements to support them. A few important conclusions can be drawn from this review. The first is that Kenya has come a long way in terms of how it is organized and carries out public policy. The state-led approach that dominated the first four decades has given way in the 2000s to a change in regime norms that facilitate a more diverse, multi-layered policymaking process involving not only government at national and county levels but also other stakeholders in the private and civil sectors as has  already been demonstrated by other chapters in this volume. These institutional reforms have been largely home-grown, the 2010 Constitution being the most powerful example of what Kenyans have accomplished on their own. Putting this constitution into practice is still a work in progress which means that follow-up action is needed in many respects to fulfil the constitutional promise. This is likely to take time  and for that reason, Kenyans must keep the pressure for institutional reforms alive.

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References Anderson, James E. 2006. Public Policy Making. New  York: Houghton Mifflin Company. Andrews, Matt. 2013. The Limits of Institutional Reform in Development. Cambridge, UK: Cambridge University Press. Aseka, Eric M. 2004. Politics, Democratic Transition and Development in Kenya. In Governance, Society and Development in Kenya, ed. Paul W.  Achola, J.O.  Shiundu, H.  Mondo, and B.G.  Ng’onga. Eldoret, Kenya: Moi University Press. Asingo, Patrick O. 2008. Privatization of Water Services in Kenyan Local Authorities: Governance and Policy Issues. In Decentralization and Devolution in Kenya: New Approaches, ed. Germano Mwabu and Thomas N.  Kibua. Nairobi: University of Nairobi Press. Baimyrzaeva, Mahabat. 2012. Institutional Reforms in the Public Sector: What Did We Learn? Bingley, UK: Emerald Group Publishing. Barkan, Joel D., and John J. Okumu, eds. 1979. Politics and Public Policy in Kenya and Tanzania. New York and Nairobi: Praeger. Berk, Gerald, and Dennis Galvan. 2009. How People Experience and Change Institutions: A Field Guide to Creative Syncretism. Theory and Society 38 (6): 543–580. Gathara, Patrick. 2008. Devolved Healthcare: Makueni’s Trailblazing Experiments in Improving Universal Health Coverage. Elephant, January 11. Goldsworthy, David. 1982. Tom Mboya: The Man Kenya wanted to forget. Nairobi: Heinemann. Greif, Avner. 2006. Institutions and the Path to the Modern Economy. New York: Cambridge University Press. Himbara, David. 1994. Kenyan Capitalists, the State and Development. Nairobi: East African Educational Publishers. Kaplan, Irving, et  al. 1967. Area Handbook for Kenya. Washington, DC: U.S. Government Printing Office. Korwa, Adar G., and Isaac M.  Munyae. 2001. Human Rights Abuse in Kenya Under Daniel Arap Moi 1978–2001. African Studies Quarterly 5 (1): 1–17. March, James G., and Johan P. Olsen. 2006. Elaborating the New Institutionalism. In The Oxford Handbook of Political Institutions. New  York: Oxford University Press. Murunga, Godwin. 2007. Governance and the Politics of Structural Adjustment in Kenya. In Kenya: The Struggle for Democracy, ed. G.R.  Murunga and Shadrack W. Nasong’o. Dakar: CODESRIA Books. Mwega, Francis M., and Jane Wanjiku Kabubo Mariara. 1993. Kenya. In The Impact of Structural Adjustment on the Population of Africa: The Implications for Education, Health and Employment, ed. Aderanti Adepoju. London: United Nations Population Fund and James Currey.

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Nasong’o, Shadrack W. 2007. Negotiating New Rules of the Game: Social Movements, Civil Society and the Kenyan Transition. In Kenya: The Struggle for Democracy, ed. G.R. Murunga and S.W. Nasongo. Dakar: CODESRIA Books. North, Douglass. 1990. Institutions, Institutional Change and Economic Performance. New York: Cambridge University Press. Odhiambo-Mbai, C. 2003. Public Service Accountability and Governance in Kenya Since Independence. African Journal of Political Science 8 (1): 113–145. Opata, Grephas P. 2004. Development Planning in Kenya: A Critical Review for the Period 1963–2000. In Governance, Society and Development in Kenya, ed. Paul P.W. Achola et al. Eldoret, Kenya: Moi University Press. Osborne, Myles, and Susan K.  Kent. 2015. Africans and Britons in the Age of Empires, 1660–1980. London: Routledge. Ostrom, Elinor. 1990. Governing the Commons. Cambridge, UK: Cambridge University Press. Peters, B. Guy. 1989. American Public Policy: Promise and Performance. Chatham House Publishers: New York. Republic of Kenya. 1964. The Kenya Education Commission Report (The Ominde Commission Report). Nairobi: Government Printer. ———. 1965. Sessional Paper No. 10 of 1965 on African Socialism and Its Application to Planning in Kenya. Nairobi: Government Printer. ———. 1971. Report of the Commission of inquiry on Public Service Structure and Remuneration (Ndegwa Commission Report). Nairobi: Government Printer. ———. 1980. Report of the Civil Service Review Committee, 1979–80. Nairobi: Government Printer. ———. 2003. The Economic Recovery Strategy for Wealth and Employment Creation for 2003–2007. Nairobi: Ministry of Planning and National Development. Rukwaru, Mutea. 2019. Broken Promise. Meru, Kenya: Eureka Publishers. Sabar, Galia. 2002. Church, State and Society in Kenya: From Mediation to Opposition 1963–1993. London: Frank Cass. Scott, William R. 2014. Institutions and Organizations: Ideas, Interests, and Identities. London: Sage Publications. Wanzala, Ouma. 2019. Education Ministry Abandons Uhuru’s Laptop Project. Daily Nation, February 25. Warwick, Donald P. 1979. Cultural Values and Population Policies: Cases and Context. In Patterns of Policy: Comparative and Longitudinal Studies of Population Events, ed. John D.  Montgomery, Harold D.  Lasswell, and Joel S. Migdal, 295–330. New Jersey: Transaction Books.

CHAPTER 14

Building and Reforming Institutions: From Technology Transfer to Policy Networks Eric E. Otenyo

Introduction Institutions are a fundamental part of policy management. How they are constituted and how they perform are crucial determinants of outcome. It is no surprise, therefore, that institution-building and institutional reform have played a prominent role in public discourse in Kenya ever since independence. The effort to date has been focused on government institutions. It is a story filled with good intentions but limited practical results. After close to six decades of trying, there is reason to “think outside the box” that has dominated the institutional reform agenda. How can policy management be enhanced by a more participatory approach that brings stakeholders outside the government into the policy process in a constructive fashion? This is the principal question that this chapter addresses as it traces the reform measures that have been taken and why they have fallen short of their promise.

E. E. Otenyo (*) Northern Arizona University, Flagstaff, AZ, USA e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 G. Onyango, G. Hyden (eds.), Governing Kenya, https://doi.org/10.1007/978-3-030-61784-4_14

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The chapter is organized into three main sections. The first identifies the concepts and theories that have been important in shaping the ideas and practices of institutional reform. It highlights the tension between rationality and politics as well as organization and institution. This section sets the stage for the next two which are devoted to the experience of institutional reform in African countries and more specifically in Kenya. In the end, the chapter describes the concepts of governance and policy networks highlighting why these are increasingly relevant and need to be given greater attention in the future discourses on what to do to make policymaking more effective and relevant for Kenyans.

Conceptualizing Reform Governments are at the same time expected to both govern and represent their citizens. Governing involves autonomous action to achieve results; representation involves bringing rivalling ideas to bear on the process of making policy. The former conventionally stresses rationality—the latter, politics. They do not always go together smoothly because one is the product of rational thought, the other, the outcome of social interaction. This tension manifests itself in two ways that are relevant for this chapter. The first is in how policies are produced in a tense relationship between administrative routines and political legitimacy or, as it sometimes is also referred to, cost-effectiveness and policy relevance. The other tension is between the organization and the institution. The former refers to the rational organization of roles with the view to achieving a common objective, while the latter applies to the normative or cultural content that is needed to make the organization “tick”. Here the tension is between blueprint and process: almost blind compliance with rules as opposed to internalizing values that may take time, but which make collective action meaningful. Rationality Versus Politics Following Harold Lasswell (1951) in the tradition of essentializing policy problem-solving as a goal for democracies, the focus of African governments, with incentives from international donors, has been to conceive economic and social problems in technocratic terms. The reigning premise has been that bringing scientific knowledge into policy is the logical way to solve social and economic problems. Thus, decision-makers are expected

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to use legitimate and unbiased scientific knowledge to guide policymaking and implementation. This perspective structures the form and practice of reform management and institution-building in Kenya. It ignores the role that politics plays, yet in the end, it is traditionally the political elite in Africa that has provided and manipulated the policy venues which structure and confine policymaking and implementation. The policy venues, defined by Baumgartner and Jones (1993, p. 32) as the “institutional locations where authoritative decisions are made concerning a given issue”, are, of course, managed and run by bureaucrats with deep political leanings. Further, these political affiliations frequently shape the values that govern the policy management systems and are key to understanding policy outcomes. In Kenya, therefore, the debate has been dominated by how bureaucrats implement policies that are good for the political establishment. To the extent that experts in the public service have had any influence on the political dictates of the day, the policy decisions are based on a mixture of rationality and political conjecture. The latter may be at odds with technical sophistication and theoretical rigour. It behoves policy scholars in Africa to sharpen their approaches to understanding just how institutions work and contribute to the policy process. Organization Versus Institution Ever since Douglass North (1990), the Economics Nobel Laureate, showed that institutions are key determinants of economic performance, there has been a broad consensus in the development policy community that institutions matter. Viewed largely as rules and norms, institutions structure human interactions and mould individual human behaviour (Hodgson 2006). While associated with the institution, the organization is not the same as an institution. It is a manifestation of the institution, that is, the presence of values that hold the organization together (Johnson 1998). Organizations are rationally arranged roles and responsibilities. Their performance is determined by the cultural values that underpin the interactions among people performing these roles and execute these responsibilities. In this perspective, it is the tension between organization and institution that shapes the institutional evolution of an economy and its development performance. As North shows, institutions affect transaction costs, which include those involved in the design and enforcement of contracts

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and the buying and selling of goods and services. This is especially important when institutions offer incentives (including property rights) to members of society who create and nurture wealth. In Africa, maladministration in public organizations negatively affects transaction costs as measured by innovation (Barasa 2018). Africa’s history is replete with cases of policy failure across all sectors. Ineptness, lack of accountability, and corruption have been a marked characteristic of Africa’s governance institutions ever since independence. Decay and collapse of infrastructures as well as stalled projects are among the many manifestations of these failures (Otenyo 1998, p. 11), an observation that has been confirmed by other scholars, for example, Wohlgemuth et al. (1998). Because institutions are not only determinants of society and its development but are also its products, they are bound to differ from country to country. North, Wallis, and Weingast (2006) show how societies historically differ in terms of whether they have resolved the definition of key social boundaries that impact political order. For example, where state and nation continue to be in dispute, political priority will be given to institutions affecting order or regime maintenance. According to North and his collaborators, most countries around the world cannot just open in a liberal-­democratic manner because their social and economic conditions are such that government leaders fear openness and competition. As research shows, once institutions have collapsed, for example, as a result of civil war, they are difficult to revive (Aron 2003). It can be argued, therefore, that without peace and security (social order), it is difficult to conduct a meaningful conversation on policy formation and implementation. Strongly institutionalized governance systems anchored in political stability are necessary for decision-making forums to function in the public interest. Why African countries have suffered from weak governance systems and how they have been addressed since independence deserve a little more detail to place the Kenyan case in its comparative perspective.

Africa’s Problematic Public Institutions Institutions, as suggested above, are societal anchors. They take time to build and are difficult to change. Once destroyed, they are hard to rebuild. Africa’s principal dilemma has been that its public institutions were created by the colonial powers without being grounded in indigenous African traditions. This means that unlike other regions of the world, there is a disconnect between public and communal institutions. As Ekeh (1975)

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argued, the loyalty of Africans tends to be towards the local community. The public realm is primarily viewed as a resource to be shared among these communities. Its management receives much less attention and “cheating” its objectives is not necessarily viewed as a violation. On the contrary, it is often celebrated in the local community (Hyden 1980). The challenge of Africa’s public institutions, therefore, is to earn legitimacy by becoming embraced by society in the same way as communal institutions are. Data from sources such as the World Bank, UNDP, and other global data sets indicate that six decades after independence, this continues to be an unresolved issue. They confirm slow progress towards realizing policy goals, a shortcoming that applies across various development sectors such as health, education, housing, manufacturing, environment, and job creation. Because much of Africa’s development has been extensively supported by international donors, their voice has counted most when it comes to fixing weak institutions. The list of scholarly champions ready to fix institutions for better economic performance and poverty reduction is long. Most influential have been those who use a rationalist economic lens, for example, Acemoglu et al. (2001), Easterly and Levine (2002), and Rodrik et al. (2002). In varying degrees, they all emphasize the importance of institutions in finding solutions to some of the problems confronting Kenyans and other Africans. These scholars have been drivers of a change in orientation that has been absorbed by international management consulting such as McKinsey & Company, Boston Consulting Group, and PricewaterhouseCoopers (PwC) which in turn have made money from selling them to clients in Africa and around the world. Because these firms are in competition with each other and operate on a global level, they “sell” standard packages associated with their own brand that is meant to give them a competitive advantage. The most “fashionable,” however, is rarely the most appropriate advice, especially in Africa with its weak and volatile institutional structures. The voices in the scholarly community that are sceptical about championing “Western” management models have grown in strength over the years. Moris (1977) expressed his reservation about the value of transferring Western management systems into African civil services, and Hyden (1983) argued similarly that there are “no shortcuts to progress”, suggesting that institutional reforms need to be better attuned to the constraints and opportunities that exist in African societies. Others have reiterated the same message, more recently, for example, Matt Andrews (2013) in his

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review of the experience with institutional reforms in developing countries. His point is that these reforms fail because they are enacted as signals or, in policy terms, for symbolic purposes. To work, he argues, reforms must be problem-driven institutional adaptations (PDIA), a way of saying that they need to be more effectively embedded in the development policy community itself. Doing so means approaching Africa’s problematic public institutions “head-on” by stretching the reform venture to sensitive areas such as the political patronage system that  which fuels corruption (Peters 2001, p.  139). This issue and related aspects of politicization were raised by African public servants already in the first decade after independence. In a review of the experience documented in reports and papers discussed at the annual roundtables of the African Association of Public Administration and Management (AAPAM), high-level civil servants from English-­ speaking countries in the region lamented the political interference that characterized public administration in their respective countries (Rweyemamu and Hyden 1975). Having been trained in the days before independence, they were firm believers in a system of administration in which expertise, not political opportunism, prevails. Over the years, this notion of an independent civil service has continued to be challenged by political leaders. Because the weakness of these institutions has been so persistent, many ways of dealing with it have been attempted. It is possible to identify three separate phases through which this reform effort has passed. They are summarized in Table 14.1. This table indicates that the early reform efforts were premised on the notion that the problem with Africa’s public institutions was the Table 14.1  Three phases of institutional reform efforts in Africa

Principal theme Main purpose Primary approach Key constraint Source: The author

1960s–1970s

1980s–1990s

2000s–2010s

Development administration Changing human behaviour Training public servants Old bureaucratic habits

New Public Management Realigning responsibilities Creating executive agencies Hierarchical traditions

Decentralized governance Delegating power Establishing local governments Political power

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human factor. The answer lay in training and changing the orientation of individual public servants. In the second phase, there was a recognition that governments were doing too much. The reason for their inefficiency and ineffectiveness was institutional. The answer was to reduce the implementation responsibilities from the ministry level and instead create executive agencies with an independent mandate. In the third and most recent phase, the problem has been defined as structural leading to recommendations that executive responsibility is shared between central and local governments. This is the first step towards a broader approach to making policy that opens the door for citizen engagement and popular participation. Policymaking is increasingly recognized as a political challenge as much as it is purely administrative or managerial. The broader evidence from experience with decentralization in the last couple of decades is that African governments have preferred to engage in deconcentration rather than devolution which means that they have limited the delegation of power to the administrative authority, not real political power. This type of decentralization is today generally considered to be insufficient in terms of tapping into society’s own potential for development. Confining the reform to government administration only is out of step with the broader calls that exist among Africans as well as foreign observers and analysts for more participatory forms of governance and policymaking. Following the adoption of the 2010 Constitution, Kenya is one of a few African countries that has engaged in a true devolution of political power to local governments. It is a bold but also demanding step that is still to be fully completed.

Building Institutions: The Kenyan Experience As suggested above, the Kenyan trajectory has largely followed the twists and turns in other African countries to improve the effectiveness of key policymaking institutions. The early years after independence involved reforming institutions inherited from the colonial system and creating new ones which were deemed to be more attuned to the development needs that were fuelled by the independence euphoria (Hyden et al. 1970). The government institutions like administrative ministries that emerged in the early 1960s were tailored to address specific policy areas pronounced in five-year development plans. Due to political exigencies and interferences in their operations, however, most government ministries and departments were forced to persistently play political roles, which affected policy

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outcomes (Rweyemamu and Hyden 1975). Erratic legislative oversight often further strained the managerial capacity of more technical government departments. Building institutions initially encompassed extensive use of expatriates and the transfer of technologies from Western countries to Africa. As Hyden (1986, p. 122) suggested, this can be understood in the context of the neo-colonial orientation of the governance systems. Obtaining technical assistance was a part of the process of raising capital overseas to accelerate development and modernization. The assumption was that up-to-date rational methods and practices of public administration and management were lacking in Africa. Moreover, the existing narrative was that the lack of well-established private entrepreneurs would be partly or mostly filled through public sector initiatives, which needed guidance from experts. In the tradition of Lasswell (1951), as alluded to, the bureaucrats were viewed as experts, equipped with knowledge, skills, and abilities that Africans lacked and described in the literature as “specialists” with a monopoly of knowledge in their respective subject areas (Rourke 1984: 94). Every expatriate “seconded to Africa”, however, came with a cost, notably their lack of understanding of the local conditions. Because this technical assistance did not work very well, as later confirmed in an evaluation (Berg 1993), African governments began to bemoan the cost of these expatriates to their economies (Kiggundu 1989, p. 184). During the same period, African countries received funding for the establishment of more than 40 Institutes of Administration (Moris 1977). According to Leys (1970) who studied training at the Kenya Institute of Administration, the problem was that institutes like the KIA were too weak to bring about a behavioural change in the habits of the civil servants. They did not have the status to bring about meaningful reform, especially those efforts that involved the transfer of new management ideas. Many of these transfer initiatives were concerned about matters like project and manpower planning and applications of intermediate technology. The agricultural and rural sector was the main target of these projects. Goran Hyden’s (1974) evaluative study of technology transfers through cooperative training programmes in Tanzania exemplified the challenge of using inapplicable “imported” knowledge and values in addressing African needs. He found that skills imparted did not achieve evident improvements in organizational performance within the cooperative movement. Moris (1977, pp.  74–75) confirmed that training courses at these institutes of administration did not change the orientation of the

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administrative cadre towards a greater appreciation of better governance practices and managerial values as was expected with this large-scale institution-­building effort. The curriculum and its content proved not to be sufficiently aligned with prevailing values to provide momentum for change. This led Moris to question whether “is it even desirable to suggest the transfer of Western management concepts, techniques, and programs into a setting where many forms of administration are operating with levels of efficiency from 15 to 30 percent of their potential?” (ibid.). Technology transfer, therefore, was the dominant mode of building institutions in Africa in the first couple of decades after independence. The focus was squarely on public agencies that were assumed to play the key role in promoting development in the post-independence period (Kiggundu 1989: 189). This effort to fill the skills gap was complemented by human resource development programmes for African civil servants. Some were sent on education or training in Europe or America, but much of it took place in African countries, at universities as well as in more specialized training institutes. These efforts were generously sponsored by the international donor community, for example, the Nordic development assistance agencies, Australia, Germany, and Japan as well as the main multilateral institutions such as the World Bank and the United Nations Development Programme (Kiggundu 1989, p. 184). This faith in the effectiveness of technical assistance, however, gradually diminished. Case studies on Africa suggested that some of the technology transfers were costly, ineffective, and poorly utilized. Some hardware was often demonstratively inappropriate (Mytelka 1986). This lack of appropriateness explains why the utilization of technology was low and unsustainable. Along with hardware, technology transfers often included transformative changes in organizational arrangements. Whether merely procedural or transformative, the early reform efforts in Africa were not adequately grounded in the political and administrative realities of these countries. Despite these shortcomings, this technocratic approach has continued to feature in institutional reform efforts in Africa, often driven by private consulting firms wishing to sell their brand by offering “the latest” even though it is usually a mistaken premise for success. The most important point, however, is that in the1980s there was a noticeable shift in orientation among the international donors from building to reforming institutions. During the 1980s and 1990s, the IMF and World Bank linked their capacity-building training component with support of a neoliberal agenda (Nsouli 2001). Much of the training initiatives

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were targeted on sectors that promoted the interests of global corporations with investments in countries like Kenya. Berg’s (1993) evaluation of the various technical assistance programmes found flaws in the process and design of these programmes in Sub-Saharan Africa. According to him, these cooperative efforts were considered parts of larger capital investment programmes to support universities in their bid to enhance local capacity. Berg observed that African countries had made achievements in increasing numbers of educated workers, but because some of them had left for work in OECD countries, there was still a need to build local human and institutional capacity as drivers of internal growth and development (Berg 1993, p. 243). In his view, without strong human capacity, African countries would be constrained in how they use development assistance funds. The Berg Report shifted the emphasis on capacity-building from the human to the institutional dimension. In Kenya, this shift took the form of administrative reforms at the district level. For example, the decentralization efforts were accelerated in the 1980s, for example, through the District Focus for Rural Development in Kenya. The government promoted delegation of administrative authority as a tool for both development and regime consolidation (Leonard 1991; Chitere and Ireri 2004). Although this reform provided an opportunity for districts to identify projects for development, they remained upwardly accountable to the national government. Besides concerted spatial decentralization efforts, in the 1990s, Kenya’s institutional reform agenda embraced the tenets of the global New Public Management revolution. At the core of this movement was the redefinition of the role of government to empower the private sector to take on roles traditionally associated with government agencies. In that spirit, Kenya privatized several state-owned enterprises and redefined its internal administrative processes. As an example, the government outsourced management of Kenya Airways and at the behest of the World Bank divested strategic organizations including the Kenya Railways, Kenya Power, and Kenya Telecommunications (Kelley 2000). The decade 2000–2010 witnessed further efforts to reshape the country’s managerial systems to increase the capacity of the country to service its debt and expand opportunities for corporations investing in the country. Thus, as reflected in the perennial lack of basic services like water and electricity, the capacity to serve most rural Kenyans remained largely ignored and weak. The search for solutions to address the policy problems above found a voice in the politics of constitutional change. The ensuing constitutional reforms touched on key structures of the government including legislative

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bodies (Ndulo 2019; Onyango 2020). The 2010 Constitution established 47 county governments which allowed governors and Members of County Assemblies (MCAs) to drive local policy agendas. A further refinement of these reforms has emerged as county governments have opened additional policy venues through collaborative Regional Economic Blocs, as shown in Table 14.2. The formation of these blocs is an important innovation that adds value to the devolution process. It may fragment the system of governance and thus making it more complex, but it provides opportunities for local governments to learn from participating in additional policy venues than beyond those provided by the national government. An especially important aspect is that counties are learning to become economically productive instead of relying on the small amount that can be collected from the local county residents. Thus, the blocs are actors with the potential to enhance local development while also contributing to the national economy. Some of the blocs have done better than others and because they compete with each other, it seems that not all of them will survive thrive. Since some counties are members of more than one bloc, they may go with the one that has the best prospect of succeeding. For example, the North Rift Economic Bloc has displayed weaknesses and has become dormant before being revived. Management of these blocs is also an issue that needs to be Table 14.2  Kenyan counties organized in regional blocs Bloc name

County members

Central Region Economic Bloc (CEREB) (also called Mt Kenya and Aberdares) Frontier Counties Development Council (FCDC) Jamuiya ya Counti za Pwani (JKP)

Embu, Kiambu, Kirinyaga, Laikipia, Meru, Muranga, Nakuru, Nyandarua, Tharaka-Nithi

Lake Region Economic Bloc (LREB) North Rift Economic Bloc (NOREB) South Eastern Kenya Economic Bloc (SEKEB) Source: Author

Garissa, Isiolo, Lamu, Mandera, Marsabit, Tana River, Wajir Kilifi, Kwale, Lamu, Mombasa, Taita-Taveta, Tana River Bomet, Bungoma, Busia, Homa Bay, Kakamega, Kericho, Kisii, Kisumu, Migori, Nandi, Nyamira, Siaya, Trans-Nzoia, Vihiga Baringo, Elgeyo-Marakwet, Nandi, Samburu, Trans-Nzoia, Turkana, Uasin Gishu, West Pokot Kitui, Machakos, Makueni

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addressed. These problems notwithstanding, there seems to be widespread support at the county level for the continued development of this economic cooperation meant to enhance trade and investment within the blocs.

The Role of Policy Networks The creation of these economic blocs has been an important addition to policy thinking in Kenya. They draw attention to the value of networking in a governance and policy context that is increasingly complex. The concept of policy network is not new in Kenya and has been used in previous years, especially to deal with security and humanitarian issues. The next section will trace the origins of the concept, discuss how it has been applied before in Kenya, and how it fits into the current policymaking context in the country. Meaning and Origin of the Concept Networks are best defined as arrangements of voluntary cooperation for more effective problem-solving. Network members value the complementarity of resources that each member brings. Thus, they are typically formed for strategic reasons and may vary in degree of durability and scope (de Bruijn and Heuvelhof 1995). They may involve multiple tasks, from resource interdependence to information sharing. When focused on a specific problem, networks are usually defined as policy networks, but if it is an alliance or coalition to tackle broader or multiple issues together, it is referred to as governance networks (Blanco et al. 2011). Its theoretical origin dates back to the 1970s when societies in Europe and North America had reached a level of industrialization and urbanization where problems had become increasingly complex and governments were viewed as less and less effective in dealing with these challenges. As Heclo (1978) with reference to the United States and Richardson and Jordan (1979) concerning the United Kingdom show, the conceptualization was initially not identical but regardless it was viewed as a response to the growing diversification of tasks that in the immediate post-war years of reconstruction had been rather straightforward but gradually had become more complex and bureaucratized (Cigler 1983; Thompson and Pforr 2005). By the 1970s, some who wanted greater effectiveness typically favoured a corporatist form of government in which it could strike agreements with key non-state actors like trade unions and business

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chambers. Others, however, saw the backside of this model and wanted to defend the pluralist model of government to which networks like the “iron triangle” posed a threat (Lehmbruch and Schmitter 1982). In the United States, the concept signified the triadic cooperation between Congress, the bureaucracy, and special interest groups to act as a policy subsystem not only making policy but also defining the agenda (Heclo 1978). The notion of an iron triangle is not particularly applicable to African countries given that they are not yet economically at a level where interest groups dominate the public scene and shape policy. Like Kenya, these countries suffer from embarrassing levels of economic inequality but are socially organized as competing communities of consumption. The lobbying that goes on is first and foremost dictated by informal pressures to make public resources go in the direction of one or a group of these communities, typically defined in ethnic or other parochial terms. This does not mean that policy networking in absent in Africa, but the phenomenon manifests itself in different forms. Examples of Policy Networks in Kenya The concept of policy network in Kenya is primarily the product of an extensive donor presence. The external financing that the donor community has provided for Kenya’s development budget has enabled members to claim a role in policymaking. As stakeholders, they have settled for relatively loose forms of involvement, but their presence at quarterly or annual events to formulate and evaluate policy strategies has been regularized over the years. Government officials have typically kept the donor presence at “arm’s length”, meaning that they have not necessarily shared all the information that pertains to an issue and donors want to know more about. Such reservations notwithstanding, the government has generally preferred dealing with donors rather than civil society. The latter has not been ignored altogether but its participation falls far short of what its members want to see. Money gives donors clout to ask for engagement with the government, but without a similar resource endowment, civil society organizations tend to be viewed as invited to participate only at the “grace” of government. Policy networks have the advantage of providing a broader choice of policy options, but it is not so much such search for policy alternatives that have provided an impetus for networks in Kenya. Rather the impetus for networking seems to have been foremost the effective use of donor funding (Sorenson and Torfing 2005; Turnbull 2003).

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Even if networking has implied greater participation by some non-state actors, it is not clear that these stakeholders have played a role beyond legitimizing what donors and government want to do. For example, following massive food shortages and malnutrition in the 1980s, donor agencies such as the European Union (EU), the World Bank, FAO, USAID, and Finnish FINNIDA, among others, put together an agenda to liberalize the grain markets in Kenya. The donor community worked together with the government, through the Treasury, National Cereals and Produce Board, Ministry of Agriculture, and several interest groups including private millers, farmers associations, and grain transportation traders in the bid to resolve the disastrous food security situation in the country. An examination of the policy landscape in Kenya would easily find other examples which illustrate the growing role of issue networks characterized by shared attention and action among many stakeholders. One such example is the country’s cooperation with the US Government in the war against terror. The policy framework of this venture has been heavily derived from this cooperation. The US partner provides financial and technical assistance as well as other incentives for the Kenyan Government and other actors in Kenya and the region to take this threat to security seriously. Anti-terrorism policies are now one of the prime areas where advocacy coalitions have emerged to support organizational policy-­ oriented learning, including equipment support to Kenya’s anti-terrorism police units. The ensuing coalition wields tremendous policy influence and supports research that benefits all parties in the policy subsystem. The networking that goes on in fighting terrorism is an example of a “deep” form of coordination because each partner agrees to give up a definite amount of time, money, and physical resources (Provan and Milward 1995, p. 10). The Untapped Potential of Policy Networks Policy networks, as suggested above, are about resource exchanges and associative relationships among agencies that may include international as well as local private entities. Information exchanges tend to be common. Members may choose to apply both formal and informal means of doing so while maintaining their organizational autonomy. In the age of the internet, such partnerships are enabled through social media, blogs, and links on websites. As the examples mentioned above indicate, networks also provide opportunities for learning and building capacity. Experience

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shows that the more stable and durable the network is, the more likely that it is effective in serving its members. This is especially true for their role in lobbying government ministries. Networks that have a “brand name” and enjoy support not just among members but the public at large are difficult to ignore. In Kenya, this applies to policy networks in the fields of education, health, and wildlife. These networks have an important role in implementing the 2010 Constitution. They are institutional mechanisms to strengthen citizen input into the policy process. Because they are focused on policy rather than politics, they are not a threat to government legitimacy. This model fits the Kenyan situation where there is a need to put “life” into the new structures that have been created with the approval of the constitution. Its full potential to serve Kenya is yet to be realized. The network model comes with one proviso that must be considered. As Rhodes (2000: 61–62) notes, the presence of networks carries the risk of diminishing public accountability. Because “no one is in charge” and there is a collaboration between state and non-state actors, the lines of accountability are easily blurred. Thus, the introduction of governance or policy networks raises the issue of how civic participation can be combined with accountability in a formula that works in the spirit of the 2010 Constitution.

Conclusion This chapter has provided an overview of the experience of building and reforming institutions in Kenya’s public policy arenas. It is the story of a constant search for an institutional apparatus that can support the ruling elite’s ambition to develop the country, economically as well as politically. The theoretical foundation for these efforts to build and reform institutions has shifted with the mode of thinking prevailing in international development and management circles, and they have been primarily introduced into the Kenyan context via foreign consultants working for international donors or companies like McKinsey & Company. The thread that runs through all these initiatives is that they have been concentrated in the government sector—its ministries and executive agencies. With a growing recognition in Kenya, as elsewhere, that government alone cannot solve problems in society, attention is now also being given to alternative and more innovative methods of governance and policymaking. This chapter has emphasized the value and importance of governance and policy networks. They are suited to addressing more complex problems that affect a

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range of stakeholders whose input is likely to make policymaking both more effective and legitimate. They provide a platform for organized citizen groups to have an influence on both how Kenya is governed and how policy content is formulated and agreed upon.

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Hyden, Goran. 1974. Cooperative Education and Cooperative Development: The Tanzanian Experience. Agricultural Administration 1 (1): 35–50. ———. 1980. Beyond Ujamaa in Tanzania: Underdevelopment and an Uncaptured Peasantry. Berkeley and Los Angeles: University of California Press. ———. 1983. No Shortcuts to Progress: African Development Management in Perspective. London/Berkeley and Los Angeles: Heinemann Educational Books/University of California Press. ———. 1986. Discovering the Resource Potential of the Ecology of Public Management. In The Ecology of Public Administration and Management in Africa, ed. African Association for Public Administration and Management (AAPAM), 122–141. New Delhi: Vikas Publishing House. ———. 2017. The Decentralization Experience in Africa: Beyond Donor-Driven Approaches. Africa Review 9 (1): 98–114. Hyden, Goran, Robert H. Jackson, and John J. Okumu, eds. 1970. Development Administration: The Kenyan Experience. Nairobi and Oxford: Oxford University Press. Johnson, Anton. 1998. On Developing Institutions in Africa. In Institution Building and Leadership in Africa, ed. Lennart Wohlgemuth, Jerker Carlsson, and Henock Kifle, 43–62. Uppsala, Sweden: Nordiska Afrikainstitutet. Kelley, Kevin J. 2000. No Privatisation, No Aid, World Bank Warns Kenya. The East African, November 3. http://www.hartford-­hwp.com/ archives/36/130.html. Kiggundu, Moses N. 1989. Managing Organizations in Developing Countries: An Operational and Strategic Approach. Bloomfield, CT: Kumarian Press. Lasswell, Harold. 1951. The Policy Orientation. In The Policy Sciences: Recent Development in Scope and Method, ed. Daniel Lerner and H. Lasswell, 3–15. Stanford, CA: Stanford University Press. Lehmbruch, Gerhard, and Philippe C. Schmitter, eds. 1982. Patterns of Corporatist Policy Making. Thousand Oaks, CA: Sage Publications. Leonard, David K. 1991. African Successes: Four Public Managers of Rural Development. Berkeley, CA: University of California Press. Leys, Colin T. 1970. Recruitment, Promotion and Training. In Development Administration: The Kenyan Experience, ed. Goran Hyden et  al., 126–150. Nairobi: Oxford University Press. Moris, Jon R. 1977. The Transferability of Western Management Concepts and Programs, an East African Perspective. In Education and Training for Public Sector Management in Developing Countries, ed. Joseph E.  Black, James S. Coleman, and Laurence D. Stifel, 73–83. New York: Rockefeller Foundation. Mytelka, Lynn K. 1986. Stimulating Effective Technology Transfer: The Case of Textiles in Africa. In International Technology Transfer, ed. N.  Rosenberg. New York: Praeger. Ndulo, Muna. 2019. Constitutions and Constitutional Reforms in African Politics. In Oxford Research Encyclopaedia of Politics. Oxford: Oxford University Press.

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North, Douglas C. 1990. Institutions, Institutional Change and Economic Performance. Cambridge: Cambridge University Press. North, Douglas D., John J. Wallis, and Barry R. Weingast. 2006. A Conceptual Framework for Interpreting Recorded Human History. NEBR Working Paper, December. Cambridge, MA: National Bureau of Economic Research. https:// www.nber.org/papers/w12795. Nsouli, Saleh M. 2001. Capacity Building in Africa: The Role of International Financial Institutions. Africa Region Findings No. 196. Washington, DC: The World Bank. http://documents.worldbank.org/curated/en/240391468191649415/ Capacity-buildingin-Africa-the-role-of-international-financial-institutions. Onyango, Gedion. 2020. Legislative Oversight and Policy-Reforms in ‘unsettled’ Political Contexts of Public Administration. International Journal of Public Administration 43 (3): 213–228. Otenyo, Eric E. 1998. Ethics and Public Service in Africa. Nairobi: Quest and Insight Publications. Peters, Guy B. 2001. The Future of Governing. Lawrence, KS: University Press of Kansas. Provan, Keith G., and H.  Brinton Milward. 1995. A Preliminary Theory of Interorganizational Network Effectiveness: A Comparative Study of Four Community Mental Health Systems. Administrative Science Quarterly 40 (1): 1–33. Rhodes, Roderick A.W. 2000. Governance and Public Administration. Debating Governance: Authority, Steering, and Governance. New  York: Oxford University Press. Richardson, Jeremy J., and Grant A. Jordan. 1979. Governing Under Pressure: The Policy Process in a Post-parliamentary Democracy. Oxford: Blackwell. Rodrik, Dani, Arvind Subramanian, and Francesco Trebbi. 2002. Institutions Rule: The Primacy of Institutions over Geography and Integration in Economic Development. NBER Working Paper 9305. Cambridge, MA: National Bureau of Economic Research. Rourke, Francis E. 1984. Bureaucracy, Politics, and Public Policy. Boston: Little, Brown. Rweyemamu, Anthony H., and Goran Hyden, eds. 1975. A Decade of Public Administration in Africa. Nairobi: East African Literature Bureau. Sorenson, Eva, and Jacob Torfing. 2005. Network Governance and Post Liberal Democracy. Administrative Theory and Praxis 27 (2): 197–237. Thompson, Graham, and Christof Pforr. 2005. Policy Networks and Good Governance – A Discussion. Working Paper Series No 2005-1. Perth, Australia: Curtin University of Technology, School of Management. https://espace.curtin.edu.au/handle/20.500.11937/41480. Turnbull, Shann. 2003. Network Governance. Corporate Governance International 6 (3): 4–14. Wohlgemuth, Lennart, Jerker Carlsson, and Henock Kifle. 1998. Institution Building and Leadership in Africa. Uppsala, Sweden: Nordiska Afrikainstitutet.

CHAPTER 15

Kenya: A Comparative East African Perspective Goran Hyden and Gedion Onyango

Introduction This volume would be incomplete without an effort to place Kenya in comparative perspective. We have already alluded to comparisons in previous chapters, but this is a more systematic effort to place Kenya in its broader global and African context. The more specific purpose of this chapter is to compare the public policy practice in Kenya with three East African countries—Rwanda, Tanzania, and Uganda—and assess how far mainstream conceptualizations of policy regimes and institutional reforms apply to the East African situation. It begins with an introduction of why the four countries have been selected and how current public policy

G. Hyden (*) Department of Political Science, University of Florida, Gainesville, FL, USA e-mail: [email protected] G. Onyango Department of Political Science and Public Administration, University of Nairobi, Nairobi, Kenya e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 G. Onyango, G. Hyden (eds.), Governing Kenya, https://doi.org/10.1007/978-3-030-61784-4_15

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practice has been shaped by both precolonial legacies and contemporary governance challenges. This section is followed by an attempt to classify these practices using mainstream theoretical concepts to locate where these countries belong in a wider global perspective. The third section is a discussion of what difference policy regime makes to the country. The final section is an attempt to draw the lessons from this volume for understanding how institutional and policy changes occur in Africa.

Four Neighbours: Four Policy Regimes Kenya and its three East African neighbours are not necessarily representative of the rest of Africa, but they are selected here because they have much in common. To begin, they share a colonial legacy split between the British and a League of Nations/United Nations trusteeship status. They were all subject to a form of indirect rule—in Kenya and Uganda by British design, in Rwanda and Tanzania by international mandate. After independence they have gradually been integrated, albeit not without tensions, into a single political entity—the East African Community1—meant to foster regional economic and political integration. Furthermore, they share a close relationship with the international development community. The Western OECD donor countries have generously contributed to the national budgets and economies in all four of these by funding the key social development sectors—education, health, and water. The result is that donors have had a significant place in public policy practice. Finally, when placed in the context of African policy performance, the four countries are neither at the top nor at the bottom. Kenya is the only country that can claim middle-income status, but they all fall somewhere in the middle on regional indices of governance and development. In short, it makes sense to approach this comparison using a “similar systems” design with the objective of showing how, despite what they have in common, there are significant differences in policy regime. These differences have been largely ignored by current mainstream policy and institutional analysis because it does not consider the “local grain” or the context in which policy interventions and institutional reform efforts are attempted. There is no sense of what the implications of these efforts are in countries where society is still largely natural, and the state mandate is to forge a new 1  The six members of the East African Community are Burundi, Kenya, Rwanda, South Sudan, Tanzania, and Uganda.

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nation. Nation-building and development exist in a thorny relation in African countries but that does not factor in policy or institutional designs funded by donors. They do not start from how countries are governed, only how their governance can be changed. While the rationale for this position is understandable, it has been a shortcoming that these donors are now increasingly accepting by acknowledging that national ownership of their aid in partner countries is a necessary ingredient of success as confirmed in the Busan Partnership for Development Effectiveness (OECD 2012). It is important for analysts, therefore, to better understand the local policy realities in African countries. Precolonial Legacies It begins with understanding how precolonial legacies inform current policy regimes. As indicated above, these legacies were never erased by the colonial powers. The colonial administrators were ready to incorporate elements of indigenous structures into their own governance apparatus. The British avoided a break with the past by adopting indirect rule, and even where they appointed chiefs of their own, they made choices of people who held legitimacy in their respective communities. Neither the Germans nor the Belgians who managed the United Nations trusteeship territories of Rwanda and Burundi overturned the kingdom structures of these two countries. Since independence, African governments across the region have been oriented towards reinventing their own past rather than going with their colonial heritage. Unlike this heritage, the precolonial situation varied as a closer account of the four East African countries demonstrates. In the savanna highlands of what today is Kenya, societies were ruled by clan elders and lacked a supreme leader, that is, a chief or king. These were stateless or acephalous societies which meant that they also lacked fixed boundaries. The Kikuyu, Masai, and other groups that occupied this land were frontier people who moved freely on to new lands (Kopytoff 1989). They had to get along by using reciprocal exchanges to avoid conflict, including the right to take revenge in case of attack. Kenyan politics today is modelled on this precolonial principle. The British decision to alienate land to white settlers obviously limited their territory, and this decision eventually led to the Mau Mau uprising. Although the Kikuyus have tried to claim supremacy based on their leading role in the struggle for independence, the political playing-field in Kenya is relatively even leading to

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intense competition between the various acephalous ethnic groups and the need for political actors to create alliances or coalitions across ethnic lines. As previous chapters have discussed, the presence of clientelist networks is a prevalent feature of the policymaking process. Leading political figures in each ethnic group become the focus of clientelist networks. Being able to deliver goods to followers is the key to success and a sustained political career. Once a leader has a strong following, he (or she) cannot be ignored in the national conversation about who should be in government. It is among these political “patrons” striving for power and influence at national level that political settlements are reached—even if it may be at the expense of the division of power between centre and periphery, as indicated in previous chapters. Despite these occasional breaches, the rules of Kenyan politics—whether formal or informal—are well known and generally respected by the politicians. The country is a perfect example of transactional politics where it becomes hard to restrict political freedoms because there is no single group or party strong enough to govern on its own. In fact, this dynamic, contrary to conventional interpretations of Kenyan politics, tends to generate a demand for rules that apply equally to all. Rwanda is the opposite of Kenya. Borders matter and they have remained pretty much the same as they were before 1884. It is a traditional kingdom that is now trying to modernize within its own shell. Although the monarchy was abolished at independence, its legacy never died. The Hutu leaders who took over the government soon after independence tried to eliminate it but never succeeded. When the Tutsi aristocracy returned from exile and seized power after the 1994 genocide against its members that had remained in the country, the cultural norms of the monarchical past have been restored in the form of “home-grown initiatives”, policies that aim to build on indigenous institutions. These include, for example, imihigo, a form of performance contracts adapted from precolonial governance practices; gacaca courts, local platforms for civil dispute resolution; and umuganda, an indigenous term for communal work that has been revived to organize local development work. Perhaps most importantly, the returning Patriotic Front has not only taken over the reins of government but also established a conglomerate of private business enterprises managed by military and civilian leaders loyal to the regime. Rwanda is one of few countries in Africa which has much in common with the nation-state: a confluence between nationality and state, a single language and a social cleavage based on caste, not tribe. Its

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transactional politics, therefore, is less apparent but exists in the form of hierarchical arrangements to perform common public tasks. Participation in the Rwandan developmental state, therefore, is compulsory and viewed as civic duty. The regime considers it the most important means to create a new sense of common identity based on “one language, one culture, one history and one people”. This policy concern takes precedence over the principles of freedom and democracy. Uganda has much in common with Rwanda, but it is also different. Like the land around the Great Lakes of Africa, a big share of Ugandan territory is banana country—a perennial crop that led to sedentary living and the growth of more complex systems of government long before the colonial powers arrived. The British who were given Uganda at the Berlin Conference brought together into one territory no less than five kingdoms—Buganda, Ankole, Busoga, Bunyoro, and Toro—for which borders mattered. Disputes between especially Bunyoro and Buganda became politically heated events during colonial time and occupied much of the attention of the British overlords. Although the British had relied on all kingdoms to participate in their administration under the system of indirect rule, Buganda became especially important to the administration because the country’s capital, Kampala, is situated within its borders. As the British were withdrawing from Uganda and prepared for independence, they yielded to the demand from Buganda to give the kingdom federal status within the Republic of Uganda. Furthermore, the Buganda king—the Kabaka—became the republic’s first president. Others saw these arrangements as the creation of a “state within the state”, and once the pre-independence elections had been held, the majority political party, the Uganda People’s Congress, felt hampered by Buganda’s favoured status. Milton Obote—the Prime Minister—representing the acephalous northern region of Uganda, went as far in 1966 as asking the national army to intervene by attacking the presidential palace, likewise the traditional residence of the King. The latter was forced into exile, but an equally important indirect consequence of this intervention was Field Marshal Idi Amin’s coup in 1971. As head of the army, he had smelled the sweetness of power in 1966, and five years later, he did not hesitate to overthrow Obote when he attended a British Commonwealth meeting in Singapore. Uganda has remained a socially and politically fractured country in which the powers of the traditional kingdoms have remained despite attempts to lessen their influence by breaking them down into administrative districts. It had seven different presidents during its first 25 years of independence,

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none of whom managed to successfully hold the country together. Since 1986 the country has had the same “Big Man”, Yoweri Museveni, as president. As he applies his ways of managing the diversity of the Ugandan state-nation, he is forced to rely on “buying” the support of various factions that form around key policy issues (Kjaer 2015). Tanzania, finally, also has a precolonial past that matters to this day. The country is a complex mixture of sedentary and nomadic peoples, none of which was really a dominant force prior to 1884 when the Germans were given the go-ahead to occupy Tanganyika, the mainland portion of what is today Tanzania (Zanzibar under British protection at the time being the other). What has really brought the many ethnic groups in the country together is the legacy of the Arab slave trade and its help in spreading Kiswahili, a language made up of influences from Arabic and various Bantu languages. The country’s first president, Julius Nyerere, saw the potential for national unification by making Kiswahili not only a lingua franca but also an official language to be used in government. Kiswahili is today a lingua franca and official language in Kenya too, and it is being used both officially and unofficially in the other East African countries, notably Burundi. For example, it is used in deliberations in the East African legislature, the legislative body of the East African Community. It is only in Tanzania, however, where the language represents a distinct culture that increasingly embraces the population at large. Kiswahili has served the Tanzanian state-nation project well. Ethnic identities have been largely abandoned and the precolonial governance systems of each ethnic group erased in favour of a nation-wide local government system. In this respect, Tanzania differs from Rwanda where the precolonial institutions of the indigenous kingdom have been reinvented for contemporary use. By giving so much emphasis to Kiswahili as a distinct culture, Tanzania has created an image of itself inspired by a Pan-African ideal of continental self-reliance and pride. Emerging Regimes These precolonial legacies are not the whole story of how the countries are governed, but as overlooked aspects they not only need to be understood but also injected into any attempt to define and characterize their emerging regimes. This sub-section will do precisely that. Drawing on the legacies discussed above it will examine the core characteristics of these regimes and compare them to the existing literature on policy theory. More

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specifically it will address the following questions: (1) how the regime is structured, (2) how it operates, (3) what its consequences are, and (4) which the national profile issue is. The core characteristics are summarized in Table 15.1. We have already touched on the characteristics of the Kenyan case. Suffice it here to mention how the Kenyan policy system relies on building coalitions to secure space for bargaining about specific policies and how the new constitution creates competition at both national and county levels between leaders who in a clientelist fashion dish out primarily private or club (community) goods among followers. In comparative perspective, the national issue that profiles Kenya is participation and how to manage it, a subject that has been prominent ever since the days of harambee in the 1960s and has been revitalized once again by the devolution scheme. The Rwanda Patriotic Front (RPF) took over the government in Rwanda in 1994 and has since then restructured the country’s policy regime in a corporatist direction. It is not the form of corporatism that exists in liberal democratic countries like Germany or Sweden (Lehmbruch and Schmitter 1982), but in its attempt to integrate the public and private sectors in a national mega-development effort, it is corporatist, whether it should be labelled “communitarian” as in ancient Greece or “absolutist” as in the Catholic Church before its hegemony in politics came to an end. Like these, the regime in Rwanda is based on the premise that individual interest and rights are subordinated to the greater good of the nation. With the existence of performance contracts and annual assessments of how well public managers are doing, the consequence is clearly a focus on results, an orientation that is not as strongly institutionalized in other African countries (Bayart 1993). There is little room for political participation outside the policy framework set by the government (Hasselskog and Schierenbeck 2015). Because the country tends to be governed as a Table 15.1  Core characteristics of East African policy regimes Country

Structure

Operation mode

Consequences

Profile issue

Kenya Rwanda Tanzania Uganda

Coalitional Corporatist Bureaucratic Networking

Bargaining Mechanical Top-down Issue-based

Competitive clientelism Results orientation Limited participation Fragmentation

Participation Compliance Domination Leadership

Source: Authors

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business venture, the national profile issue is its emphasis on compliance (Crisafulli and Redmond 2012). It rewards public servants and it helps to get development done, whether it is through implementation of sector policies or enforced self-help activities. The bureaucratic nature of the Tanzanian regime has its roots in how the country achieved independence. The process produced the total dominance of a single party—the Tanganyika African National Union (TANU)—which became Chama cha Mapinduzi (CCM) in 1977 after amalgamation with the dominant party in Zanzibar—the Afro-Shirazi Party. Civil servants were left with little choice but to toe the party line, a requirement that intensified after TANU adopted a socialist policy regime with the announcement of the Arusha Declaration in 1967. The emphasis has been laid on maintaining the country’s national unity by ensuring that the party reaches out to every village and controls the population through a system of cells made up of a small number of households. Thus, the politicized bureaucracy reaches all the way from top to bottom of society. It has served well as an institutional mechanism for channelling donor funds aimed at social development in the rural areas. This is an important achievement even if it has not always been efficient. The donor community has over the years been generally pleased with their support for Tanzania even though it has been at the cost of local participation and input. The Tanzanian Government has preferred the less transparent mode of policymaking associated with donor dialogue over a more open interaction with its own civil society. The latter, organized into a multi-­ stakeholder policy forum, has been active, but policymakers have preferred to capture its member organizations to assist them in getting development projects to their constituents (Tripp 1997; Lawson and Rakner 2005). The national profile issue in Tanzania, therefore, has been the domination of the ruling party and its control of the policy agenda, a feature that has become even more evident after President Magufuli took over the government in 2015. Uganda is different from the other East African countries because there is a more apparent disconnect between politics and policy. Leadership has been the most critical governance issue ever since independence and profiles the country’s politics more than anything else. Made up of sub-­ national political communities, many of which see themselves as true owners of territory, Uganda is by far the most difficult country in the region to govern. Following the volatility of political leadership in the first three decades after independence, the following three have been

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characterized by the rule by just one president whose reluctance to give up power has become increasingly contested. A half dozen of his former political associates have tried various ways to unseat him but have failed to muster the political strength to succeed. Politics in Uganda today remains fixated on how a new leadership can be brought in. At the same time, policymaking takes place with little direct interference from politicians. It is fragmentary and rewards those with the ability to mobilize, as Kjaer et al. (2012) show in their comparison of dairy farmers who specialize and rely on a professional support environment sponsored by the government, on the one hand, and “generalist” farmers and fishermen, on the other, for whom government policy matters less. Fragmentation, therefore, does not necessarily have to be negative, as the Ugandan case illustrates, since it provides space for getting things done in a piecemeal fashion. It may not be transformative, but as African leaders have experienced in many countries, for example, Tanzania during the days of ujamaa, conditions that are congenial for a social transformation are rarely present in policymaking contexts, as Lindblom (1959) noted already over six decades ago. Building collective action of shared economic interest is a real challenge especially in Africa’s Natural Societies, as, for example, the demise of the cooperative movement in Uganda and the rest of East Africa in the early years after independence testifies (Hyden 1973).

What Difference Does the Regime Make? Fifty years ago, the policy debate in East Africa was centred on whether Kenya’s choice of a capitalist or Tanzania’s of a socialist path of development was the “right” one. It engaged policy practitioners and academics alike (Barkan and Okumu 1979). It helped clarify many issues, both theoretical and practical, but since it was ideologically driven, it sometimes became more esoteric than helpful. For some, it became just “academic” and once the socialist experiment in Tanzania reached its end in the 1980s, the debate turned into a “post-mortem” exercise (e.g. Forster and Maghimbi 1999). Politics, as well as policy, has moved a long way since then. Politics is no longer ideological, and policy in African countries has been forced to align with the preferences set by the international donor community. Thus, what matters in mainstream policy circles today is how countries score on global indices. This is meant to put pressure on governments to adopt best practices, but what works in donor countries is not always the best policy

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prescription elsewhere, notably in African countries that are still in the process of “finding their own feet”, that is, develop formulas that make sense in the local context (Ake 1991). Furthermore, being given the right policy on a “golden plate” tends to have the effect of discouraging policy debate. The goal becomes to comply with an externally driven dynamic rather than generating a meaningful national policy dialogue. A result is a form of politics that is based on criticizing the government for not being able to do what is ideally expected and thus a tendency for civil society as a critic to be alienated from the policy mainstream. Governments prefer to go their way, civil society organizations following theirs. This is not a recipe for inclusion nor participatory decision-making, but these are now prominent features in all four countries covered here. It is necessary, therefore, to examine what difference policy regime makes in these circumstances. An initial distinction can be made between whether policy regime makes a difference for results in the form of economic and human development or for the policy process itself in terms of such qualities as open, participatory, and deliberative. Regime and Development Level of development is known to determine the probability of democratic consolidation, as discussed in Chap. 1. Political scientists with an interest in how institutions shape political regimes have shown that the emergence of a bourgeoisie or middle class is a facilitator of democracy (Lipset 1959; Moore 1966; Przeworski et al. 2000). Apart from training civil servants to become the elite of the new states, the colonial powers did little to foster an indigenous middle class. To this day, the middle class is only at an incipient stage of development in African countries and typically lacks the autonomy that makes it a potentially positive force for democratic governance (Ake 2001; Cheeseman 2015). There are differences, however, in terms of the level of development. Kenya has reached further than the other countries and is now labelled a “middle-income” country,2 while the others are still striving to be one. According to World Development data, Kenya not only already has the highest per capita income, but it also records a faster pace of growth than its neighbours, as shown in Table 15.2. 2  This occurred in 2014 after the Kenya Government revised its statistics and added 25% to its GDP. It followed the initiative of other countries around the world that conducted a similar “rebasing” of their GDP.

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Table 15.2  Macroeconomic data per country 2017 Country

GDP per capita (current PPP)

Growth per capita (current PPP)

Kenya Tanzania Uganda Rwanda

$ 3364 $ 3090 $ 2280 $ 1976

5.9% 5.4% 4.0% 3.5%

Source: World Development Indicators (2018)

Economic growth data for a longer period dating back to independence are not available but figures for the past quarter-century confirm that there has been no change in the positions of the four counties—even if their individual growth rates have varied up and down over the years. Kenya has continued to occupy the top position, and the distance between them has shifted only marginally. Per capita growth is of course not the only important economic indicator. As significant in the African context is data on the emergence of a middle class. As suggested above, if history is any guide, an indigenous middle class is perhaps the most important driver of demand for a form of economic development that transcends the limits of “consumptionism” associated with Natural Society. Reaching middle-­ income status, as in Kenya’s case, increases the pressure for such a transformation and strengthens the foundation for an inclusive growth driven by indigenous social forces. In this respect, the other three countries lag Kenya. Rwanda tries to accommodate it within the confines of its corporatist structure, but as a landlocked country, it is difficult to accelerate the growth rate. Much the same applies to Uganda although its economic climate is more open and competitive. Finally, despite Nyerere’s call for self-reliance, Tanzania discourages the growth of a middle class as a driver of development. This leaves foreign donors and investors as key actors determining the country’s economic growth rate. Does the same pattern among the countries prevail with respect to human development, as measured by the United Nations as demonstrated in Table 15.3? All four countries have important strides forward, but they all score in the middle of the index. The rise is somewhat higher in Rwanda and Tanzania than in Kenya and Uganda. The differences, however, are hardly such that they may be attributed to regime qualities. The exception might be Rwanda where the corporatist nature of its “developmental state” seems to have made a difference. In the other three countries, the size of

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Table 15.3 Human development in East Africa, 2000 and 2018 (Legend: 1.0 high)

Country

HD Index 2000

HD Index 2018

Kenya Rwanda Tanzania Uganda

0.446 0.337 0.395 0.395

0.555 0.498 0.531 0.495

Source: UNDP: Human Development Index

the foreign aid input is likely to have been as important in explaining their improvement in human development. So, if regime has little influence on development, what about governance? Regime and Governance How institutions are managed is broadly considered to be a factor that makes a difference to popular regime perceptions. People want a regime that they can trust—one that is predictable. More specifically, citizens want to be able to start a business without being hassled; they want to conduct their life without having to pay bribes; and, they want to have the freedom to express and discuss their views without fear. How do the four East African countries fare on these scores? Business climate. Today, the role of the private sector is generally viewed as critical to national development in Africa. As countries have become more integrated into the global economy and foreign aid is declining in importance, attracting foreign business and developing local companies have taken on greater significance. There are some notable differences among the four countries, especially when it comes to attracting foreign direct investment. In 2019, Rwanda and Kenya were responding with a welcome, while Tanzania and to a lesser extent Uganda were, if not outright hostile, more hesitant in welcoming foreign investors. Because both countries sit on oil and gas resources, they know that they can strike a better bargain by making it harder for business to earn profit. This is especially true for Tanzania where a revival of the spectre of state-led development has caused uneasiness among Tanzanian as well as foreign members of the business community. President Magufuli’s populist rhetoric portraying ordinary Tanzanians as victims of exploitation by private companies has reinforced this scepticism in the business community. Similar doubts are present in

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Uganda but primarily because of issues surrounding the role of the Asian-­ Ugandan community and its interest in reclaiming the properties that they lost when forced to leave the country in 1972 by Idi Amin. Kenya has always been open for business and it is still the main destination for outside investors in the region. In addition, the indigenous private sector has had time to establish itself as a force of its own offering the prospect of attractive partnerships for foreign investors. Rwanda is not following Kenya in all respects but does so in encouraging business. The government realizes the value of combining a state-led strategy with carrots for both local and foreign investors. This sets it aside from Tanzania which is the other country in the region where the state is treated as the principal driver of change. These differences show up in statistics about how easy it is to establish a business in the region. The table below indicates the position that the four countries occupy in the global ranking of easiness to do business as well as their position on specific aspects of doing so. The four countries score generally highest on the banking side. Getting credit is especially easy in Kenya and Rwanda. The latter two also score significantly higher on the protection of minority investors, suggesting that both countries value partnership with foreigners. Rwanda is alone at the top when it comes to registering property, a process that is time-consuming and often involves paying bribes in the other three countries. Corruption also features in getting permits for construction. Out of the total 190 countries included in the Ease of Doing Business survey, none of the East African countries reaches a position in the upper half of the list. Nor does any one of them register a top score on getting electricity with Uganda trailing the other three by a wide margin. In a wider comparative perspective, the four East African countries are not competitive in enabling the process of starting a business. Yet, within the region, there is a variation that reflects the different modes by which they are being governed. This variation is illustrated in Table 15.4. Public integrity. Violation of the integrity of public office is one of the most common features of African governance. Most evident in various forms of corruption, it engenders widespread suspicion and criticism from citizens across the continent. For example, in its Round 6 (2014–15), the Afrobarometer survey found that 72% of all Africans interviewed in 22 countries perceived at least “some” officials in their country’s presidency as corrupt, including 31% who say that all officials in that office are corrupt. Perceptions of corruption were even higher when it comes to

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Table 15.4  Ease of Doing Business in East Africa, global ranking by country Country

Global rank

Start business

Get permits

Get electricity

Register property

Get credit

Protection of minority investors

Rwanda Kenya Uganda Tanzania

29 51 127 144

51 126 163 164

106 128 145 150

68 75 175 83

2 122 126 146

3 8 73 60

14 11 110 131

Source: World Bank: Ease of Doing Business Survey (2019)

Table 15.5  Perceptions of corruption in East Africa by global rank and score (Legend: 100 very clean, 0 highly corrupt) Category 2019 Rank 2019 Score 2015 Score

Rwanda

Tanzania

Kenya

Uganda

51 53 54

96 37 30

137 28 25

137 28 25

Source: Transparency International—Corruption Perceptions Index

Members of Parliament, local government councillors, tax officials, judges, and police (Frinjuah and Appiah-Nyamekye 2018). Using the Corruption Perceptions Index (CPI) issued annually by Transparency International to situate the four East African countries, it is evident that except Rwanda, citizens in Kenya, Tanzania, and Uganda perceive their governments to be corrupt, as shown in Table 15.5. Rwanda reaches the mid-mark on the scale, while the other three trail Rwanda considerably. There is some improvement in Tanzania between 2015 and 2019 indicating the perceived effects of President Magufuli’s decisive move in 2017 to combat corruption in public office. Civil and political rights. Protecting and promoting civil and political rights is an especially tough challenge in countries where historical circumstances have enabled the state to claim the moral high ground and insist on citizens to serve first and foremost as duty-bearers in a nation-building exercise. As confirmed in the Varieties of Democracy (V-Dem) Index for 2019, there are a few countries, notably Mauritius and Cape Verde, that score in the top quadrant of the 202 countries included in the expert evaluation. None of the four East African countries, however, comes close

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Table 15.6  East African countries as globally ranked by the form of democracy, 2019 (Total: 202 countries) Country

Electoral

Liberal

Egalitarian

Kenya Rwanda Tanzania Uganda

108 149 99 123

103 131 77 99

124 119 62 117

Participatory 94 98 111 64

Deliberative 118 137 92 63

Source: V-Dem Annual Report (2019)

to scoring high on any of the measures—electoral, liberal, egalitarian, participatory, or deliberative forms of democracy, as shown in Table 15.6. As the above figures indicate, the overall situation of democratic governance in the sub-region is not very encouraging. It is especially so concerning electoral democracy where the best performer—Tanzania—barely reaches the mid-rank and the other three countries come in at even lower positions. The liberal form of democracy does not fare much better as, again, a little more surprisingly, only Tanzania stands out with a ranking above the middle. Other than Tanzania, it is Uganda that receives good scores on participatory and deliberative forms of democracy, reflecting its openness to policy networks. Kenya’s scores, like those of Rwanda, confirm that in a comparative perspective, the country is no better than its neighbours when it comes to democracy and space for such practices as policy dialogue and equal opportunity to participate. Perhaps the most disappointing for Kenyans is that there is little evidence that the 2010 Constitution seems to have made much difference to the policy practice in the country. Although this applies to all four countries, Kenya still has quite some way to go to match the promise of its new constitutional framework. As the leader in economic development in the sub-region, its low scores should be a cause of worry. They raise the question of how policies develop in African countries.

How Do Policies Develop? It has been a main preoccupation of the international donor community to support what its members initially labelled “institution-building” but which later became “institutional reform”. This shift in terminology reflects a change in donor approaches from trying to build on what they

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found on the ground during the first few decades after independence to their subsequent position of insisting on reform as a condition for continued aid. As Andrews (2013) has documented, reform efforts have typically fallen short of promise because of their external origin and their short-­ term time horizon. With the growing realization that local ownership is a factor that increases the prospect of success in the use of foreign aid inputs, the discourse is currently moving back towards the notion that a reformed perspective is not enough and needs to be supplemented, if not replaced, by one based on “working with the grain”, as Levy (2013) calls it. For this reason, we conclude this chapter with a discussion of how theories throw light on policy development in Africa. Three main theories are relevant here. One is based on the notion that policy development is gradual resulting from sequences of micro-decisions that build up to a major development in the long run. A second starts from the premise that change is uneven and occurs in spurts that can be identified as incidents of notable change. The third assumes that policy development takes place as a result of critical junctures at which contingent choices are made that lock policy into institutional forms that last over time. These theories have their origin in evolutionary biology but have been adopted by historians and social scientists to heuristically explain changes in social and political environments, including how policy develops. The three approaches are summarized in Table 15.7. Gradualism goes back to the early days of policy studies that focused on human behaviour to explain change. It is associated with the theory of “disjointed incrementalism” (Lindblom 1959) which maintains that policy is the outcome of many considerations that decision-makers must make to produce a policy. Writing in a similar spirit, Simon (1957) had already argued that human rationality is bounded. Optimal rationality is Table 15.7  Three main theories of policy development Theory of change

Mode of change Pace of change

Nature of process

Structure of process

Gradualism Punctuated equilibrium Path dependence

Incremental Abrupt

Slow Fast

Constant Irregular

Consistent Inconsistent

Critical juncture

Steady

Deterministic

Uninterruptable

Source: Authors

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impossible because obtaining all the information needed to choose between alternative options is too time-consuming. Furthermore, everybody is constrained by his or her place in the organizational system, and coordination comes at a cost of time. Policies, therefore, are typically made with what Simon describes as “satisficing” knowledge. Officials in a small circle discuss among themselves until they feel satisfied with their choice. The international donor community has used a gradualist approach to support policy and institutional development in African countries. It has insisted on rational and consistent solutions, but its members have typically overlooked that gradualism or reformism is slow, and they have consequently been overanxious in trying to demonstrate results that justify continued political support for foreign aid policies at home. Their insistence on building this support around internationally agreed-upon accords such as Agenda 2030 and its Sustainable Development Goals has not always boosted policy development because it has pre-empted a national policy dialogue while in many instances making governments reluctant to go along with what they perceive as donor dictates. The gradualist approach puts the donors in a dilemma. They are obliged to work through government, yet it is often civil society that adheres to the rational and consistent features of policy development. The trend in recent years, therefore, has been for donors to support government policy development in a pro forma manner while placing faith in civil society to realize their global agenda. African governments face the opposite scenario. They want to see accelerated development of their country and interpret this to also mean fast policy development, yet there is a limit to what politics allows. To be sure, governments can keep doing what they did in the early decades after independence, that is, wrap policy in progressive ideological apparel. This approach, however, has outlived itself. It lacks support in the international community. Neither Russia (Soviet Union) nor China which both granted their backing for progressive ideologies during the days of the Cold War is interested in continuing to do so. Furthermore, the African experience of mobilizing people in Natural Society has been a blind alley. The approach has quickly given way to more transactional forms of policy development. Tanzania and other countries in eastern and southern Africa that earlier chose to rely on a socialist ideology to produce development policies are reluctant to consider that option again. The prevalence of “transactionalism” may produce a temporary political equilibrium as the BBI exercise in

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Kenya illustrates, but it typically results in compromises that are viewed by many as myopic. Thus, gradualism has its limits even in a competitive, clientelist setting. This raises the question whether any of the other two approaches to policy development is more relevant for understanding what happens in the East African countries. Punctuated equilibrium. The study of policy and institutions in developed countries has yielded an alternative perspective which argues that policy development is punctuated, that is, sometimes stable and consistent but interrupted by sequences of faster and more inconsistent change. This notion of staccato development is foremost associated with the work of John Baumgartner and his collaborators, (e.g. Baumgartner and Jones 1993). It does not reject gradualism but builds on it by incorporating the role that contextual factors play in policy development. Punctuated equilibrium has its parallel in economic theory, notably Schumpeter’s theory of “creative destructionism” (Schumpeter 1942), that is, the notion that new institutions or policies come about as a result of crises or cataclysmic events in the economic or political environment. Punctuated equilibrium theories examine momentous changes in technology, environment, and politics to identify cases of policy and institutional development. This model provides a basis for explaining how contextual factors drive development by creating unexpected pressures for change to which political leaders must adjust policy and institutions. In countries where the ultimate challenge is to forge national unity and achieve political stability, it is no surprise that the punctuated equilibrium model is the result of deleterious political destabilization. The case of Uganda’s accelerated development of policy and institutions after the removal of Idi Amin in the mid-1980s is a case in point. So are the developments in Rwanda after the 1994 genocide against the Tutsis and Kenya’s own reorientation after the 2007–2008 post-electoral violence. There is some evidence that the environment and technology have been instrumental in affecting policy development. The adoption of greater environmental consciousness in policy circles in African countries, notably those in East Africa, is very much the result of experiencing changes in the environment on a close-range leading to the rise of movements like the Greenbelt Movement in Kenya. On the technological side, one can point to the rapid spread of mobile phones and associated technological innovations such as M-Pesa to illustrate how it has driven policy change. Critical junctures. This approach has much in common with the punctuated equilibrium in that it questions the notion of a linear or gradual

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evolution of policy. It differs, however, by emphasizing the role of agency. The watershed event is not the critical turning-point; it is rather the response to it that matters. Thus, a crisis is an antecedent condition that creates uncertainty about the future and therefore requires a contingent policy choice, that is, one that must be made based on very little information. Theorists call these decision moments “critical junctures” that are so dramatic that they lock policy or institutional development into a dependent path for a long period. One of the more influential sources for understanding policy development at the macro level is the study by Acemoglu and Robinson (2012) of the origins of power, prosperity, and poverty. They show how on a global scale path dependence is the result of choices made at such critical junctures. They also show that the steadiness and consistency associated with path dependence are especially important in fostering an inclusive and consensual form of economic development. The challenge using this approach is to identify these moments or critical junctures and establish that they left behind a lasting policy legacy. Antecedent conditions typically influence the decision, and the issue, therefore, is to make sure that it is the contingent choice that makes the difference. What might be African examples? It is hard to find an example where a big change in environment or technology is the antecedent condition for a critical juncture in Africa. It is easier to find it in countries which have suffered a regime breakdown. Such was the condition in Uganda and Rwanda where the political leadership had to take a chance on changing the direction of policy and institutions and succeeded in laying the social foundation for a new order. This interpretation might be criticized on the ground that the time since these decisions were made is too short to ascertain that current patterns are there to stay. What is going on in Rwanda is a good illustration of this issue. Is President Kagame’s decision to stay on in power with the support of a popular referendum a sign that the country is hard at work in locking in the perceived benefits of the decision made back in 1994, or is it the opposite: the regime does not feel strong enough to make the policy system more open and competitive? This illustrates the difficulty that arises when trying to choose between an explanatory model based on punctured equilibria where contextual variables drive policy development and another where these contextual variables are viewed as antecedents of a contingent choice that serves as the explanatory variable of a new and lasting form of development. The conclusion we draw here is that models of policy development that have evolved elsewhere are applicable in the East African context, but how

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they help strengthen policy studies is still in need of further research. We set out at the beginning of this volume to show how theory informs practice in public policy and we believe that subsequent chapters have been informative and helped answer questions about public policy foremost in Kenya but in the case of this chapter also neighbouring countries in the sub-region. It remains for us to ask what it all means for teaching public policy in Kenya.

References Acemoglu, Daron, and James A. Robinson. 2012. Why Nations Fail: The Origins of Power, Prosperity and Poverty. New York: Crown Publishing Group. Ake, Claude. 1991. Democracy & Development in Africa. Washington DC: The Brookings Institution. Ake, Claude. 2001. Democracy & Development in Africa. Ibadan: Spectrum Books. Andrews, Matt. 2013. The Limits of Institutional Reform in Development: Changing Rules for Realistic Solutions. Cambridge: Cambridge University Press. Barkan, Joel, and John J. Okumu, eds. 1979. Politics and Public Policy in Kenya and Tanzania. New York: Praeger. Baumgartner, Frank R., and Bryan D.  Jones. 1993. Agendas and Instability in American Politics. Chicago: University of Chicago Press. Bayart, Jean-Francois. 1993. The State in Africa: The Politics of the Belly. London: Longman. Cheeseman, Nic. 2015. Democracy in Africa: Successes, Failure and the Struggle for Political Reform. Cambridge, UK: Cambridge University Press. Crisafulli, Patricia, and Andrea Redmond. 2012. Rwanda Inc.: How a Devastated Nation Became an Economic Model for the Developing World. New  York: Palgrave Macmillan. Forster, Peter G., and Sam Maghimbi, eds. 1999. Agrarian Economy, State and Society in Contemporary Tanzania. Brookfield, MA: Ashgate. Frinjuah, John P., and Josephine Appiah-Nyamekye. 2018. “Time to Redeem Africa from Corruption”. Afrobarometer Paper. Johannesburg: IDASA, January. Hasselskog, Malin, and Isabell Schierenbeck. 2015. National Policy in Local Practice: The Case of Rwanda. Third World Quarterly 36 (5): 350–366. Hyden, Goran. 1973. Efficiency Versus Distribution in East African Cooperatives. Nairobi: East African Literature Bureau. Kjaer, Mette. 2015. Political Settlements and Productive Sector Policies: Understanding Sector Differences in Uganda. World Development 68: 230–241. Kjaer, Mette, Fred Muhumuza, and Tom Mwebaze. 2012. Coalition-Driven Initiatives in the Dairy Sector in Uganda. DIIS Working Paper 2012:2. Copenhagen: Danish Institute of International Studies.

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Kopytoff, Igor. 1989. The African Frontier: The Reproduction of Traditional African Societies. Bloomington, IN: Indiana University Press. Lawson, Andrew, and Lise Rakner. 2005. Understanding Patterns of Accountability in Tanzania: Final Synthesis Report. Bergen: Chr. Michelsen Institute. Lehmbruch, Gerhard, and Philippe C. Schmitter, eds. 1982. Patterns of Corporatist Policymaking. Thousand Oaks, CA: Sage Publications. Levy, Brian. 2013. Working with the Grain: Integrating Governance with Growth. New York: Oxford University Press. Lindblom, Charles E. 1959. The Science of ‘Muddling Through’. Public Administration Review 19: 79–88. Lipset, Seymour Martin. 1959. Some Social Requisites of Democracy: Economic Development and Political Legitimacy. American Political Science Review 53 (1): 69–105. Moore, Barrington Jr. 1966. Social Origins of Dictatorship and Democracy: Lord and Peasant in the Making of the Modern World. Princeton, NJ: Princeton University Press. OECD. 2012. The Busan Partnership for Aid Effectiveness. Paris: Organization for Economic Cooperation and Development. Przeworski, Adam, Michael E. Alvarez, Antonio Cheibub, and Fernando Limongi. 2000. Democracy and Development: Political Institutions and Well-being in the World, 1950–1990. New York: Cambridge University Press. Schumpeter, Joseph A. 1942. Capitalism, Socialism and Democracy. New  York: Harper & Brothers. Simon, Herbert A. 1957. Models of Man: Social and Rational. New York: Wiley. Tripp, Aili Mari. 1997. Changing the Rules: The Politics of Liberalization and the Urban Informal Economy in Tanzania. Berkeley, CA: University of California Press.

CHAPTER 16

The Evolution of Public Policy Studies in Kenya P. Anyang’ Nyong’o

Introduction Previous chapters in this volume have highlighted practices using a variable set of theories to explain what is happening as policies get made and implemented at sector, county, or national level. These chapters have drawn attention to deficiencies in practice and thus the importance of improvement. Much of this effort to improve practice takes place in the classroom at universities and institutes of government. The purpose of this chapter is to trace and critically examine the evolution of public policy studies in Kenya. It takes a holistic view of public policy and administration placing the issues in a state-theory perspective. It distinguishes between three main periods to define how the thinking about state and public policy has changed in Kenya since independence. The chapter begins with an overview of the debates that have occurred in academic circles to provide an intellectually relevant interpretation of the state in Africa and how it has affected the practice of policy and administration. The main section is devoted to more closely examining how

P. A. Nyong’o (*) Kisumu, Kenya © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 G. Onyango, G. Hyden (eds.), Governing Kenya, https://doi.org/10.1007/978-3-030-61784-4_16

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perspectives have shifted in the Kenyan context and the key principles that prevailed in each of three main periods since independence. It ends with some reflections of what the future may have in store for Kenya.

Debating Public Policy in Theory and Practice The state is the essence of modern society whether it follows a capitalist or socialist logic. It exists to shape society in its own image (Scott 1990). Interpretations of how this happens vary. The prevailing notion in Western countries tends to treat the state as a neutral actor reflecting the preferences of those who have been duly elected to run the country’s affairs. In this perspective, bureaucracy is a key component and public administration a principal focus. When change is needed in the way the state operates, it is the bureaucracy that becomes the target of reform. Such has been the focus of many studies ever since Max Weber, the German sociologist, who theorized about rationality in social action with a focus on state institutions (Giglioli 1975). The main legacy of Weber’s scholarship on the state is that it is neutral because the bureaucracy is meant to serve whichever political party with whatever ideology that comes to power through legitimate means. This notion has prevailed in Western countries until recently when populist parties with an anti-establishment orientation have come to power. A prominent example is President Trump of the United States whose position is that the bureaucracy constitutes the “deep state” to block or undermine populist policies. This is a new contestation that is increasingly influential as the liberal-democratic theory is being challenged in many European countries. The alternative perspective of the state that has its roots in Marxist theory assumes that the state is an instrument in the hands of a socio-­ economic elite who wishes to promote its own interests. The state, therefore, is not merely a machine to get things done but an instrument to control society in the interest of the already well-to-do. The focus is not on the internal dynamics of the state and how it can be improved. Instead, it is how social, economic, and political forces “tame” it for the advancement of specific interest associated with the ruling elite. This literature is critical of the state, and its ultimate objective is to mobilize the social and political forces that can transform it into an instrument that benefits the oppressed population, notably the lower social classes. The main features of the two theories are summarized in Table 16.1.

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Table 16.1  Main features of the liberal and Marxist theories of the state Feature

Liberal perspective

Marxist perspective

Role of the state Main concern

Administer on behalf of duly elected political leaders Human and institutional efficiency and effectiveness Administrative and technical

Promote and protect the interest of a ruling elite Social structures upholding status quo Political and transformative

Operational logic Expected outcome

Institutional and behavioural reform Structural reform leading to regime change

Source: Author

Both perspectives—the liberal and the Marxist—have featured prominently in the debates in Africa on what policy studies are all about. African scholars have been part of international discourse on development and how it can be advanced. A powerful driver of this debate has been the strong influence of Western donors who have pushed a policy agenda that reflects much of the liberal approach discussed above. The donor presence has also prompted reflections among African intellectuals about alternative theories to explain the African predicament. As donors or Western governments so-called development agencies began to engage with African countries in the 1960s, they brought with them liberal ideas from home that in the post-independence setting translated into the importance of building capacity in public institutions. This was reflected in the literature produced to enhance a public administration approach. It is very clearly demonstrated in A Guide to Social Analysis for Projects in Developing Countries, published by the Overseas Development Administration Office in London in 1995 (ODA 1995). The ODA assumed that the concerns of every government in developing countries (so-called overseas countries) were the attainment of sustainable improvement in economic growth and the equality of life that increase the range of choices open to all, achieved by people’s own efforts in the private sector or through voluntary activity, supported by governments. In this regard scholars—particularly sociologists, economists, political scientists, geographers—were called upon to undertake studies and analysis that could facilitate the efficient, effective, and sustainable public policy formulation and implementation. Political independence in African countries had raised people’s expectations, and the strengthening of public

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administration was deemed necessary to pre-empt frustration among people. Thus, in the first couple of decades after independence, there was a political as well as an academic consensus among Western social scientists (and Western-trained African scholars) that the new nations in the region needed states capable of modernizing society. The idea of modernization, by itself, was not new; but the idea that there should be modernizing states in Africa and the kinds of politics and policies that this implied was a product of behaviourism and post-independence academic imperialism (Nyong’o 2002). Social scientists were regarded as useful partners to donors who financed, among other things, state-led rural development projects across Africa and the Third World. The ODA was quite clear in its belief that social analysts were very useful in identifying worthwhile development projects, building the capacity of actors in the development field, identifying obstacles to implementing such projects, and quantifying the resources needed to successfully implement such projects, including their likely socio-economic impacts. Studying and evaluating these projects were in some cases as expensive as their total cost of implementation. Since much focus was laid on rural development, it became the basis for the creation of new research and training institutes in various parts of the Third World including Kenya. These included Rural Development Centres and Institutes of Development Studies mushroomed all over the Third World, the Institute for Development Studies (IDS) at the University of Nairobi being an example of this donor-driven, externally financed public or development administration studies “industry”. Its dominance of both academic and policy studies during the 1960s and early 1970s generated a greater consciousness among African scholars who believed that the public administration approach to understanding the role of the state in development was too narrow and insensitive to the economic and social realities on the continent. After all, despite being independent, there was limited evidence of the fruits of independence. The spectre of neo-colonialism, the notion that colonialism had reappeared in the form of continued economic exploitation, was becoming increasingly influential in African academic circles, in some countries spilling over into political regime turnovers. Pioneering this shift in outlook on the state in Africa were scholars at the African Institute for Economic Planning and Development (IDEP) in Dakar, Senegal, a United Nations training centre for government planners led by the Egyptian economist, Samir Amin. From the 1970s, Amin and

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his colleagues began to challenge the donor-driven public administration approach by analysing the African state in the context of what they defined as the continent’s development problematique,1 notably the implications of being located in the periphery of the world economy. It was during this period that the Council for the Development of Social Science Research in Africa (CODESRIA) was established in Dakar with funding from the Rockefeller Foundation and the same Samir Amin being appointed its first director. He was succeeded by Abdalla Bujra and subsequently Thandika Mkandawire and others who emerged to play an even more critical role in advancing this political economy approach to the study of public policy and development in Africa, including Kenya. The intellectual drives by these scholars gradually led to naming them the “Dakar School”. While accepting that the idea of development, or the improvement of life among the African people, was the dominant theme of the independence struggle among almost all African nationalists, how this life was to be improved, who were to be the beneficiaries of this improvement, and in what political context it would take place became the bone of contention soon after independence. But this bone of contention could not be understood by simply assuming, or asserting, that the state had failed to be developmental, or that public policy was faulty. It was faulty for what reasons? The political instability that ensued across Africa after independence, with military rule—attempted or successful—occurring here and there, was to be traced to this contested issue. Hence the “Dakar School” developed an approach to development studies in Africa that took as its point of departure the nature and role of the state as a key player in public policymaking, not as a neutral arbiter, but as an interested party advancing certain very discernible interests traceable to specific class/economic/dominant interests in society locally and internationally. Such policies could be palatable to some social classes in society while extremely detrimental or noxious to others. An especially influential study was Colin Leys’ book on Underdevelopment in Kenya (Leys 1975). He brought a fresh perspective on the political economy approach to public policy analysis in Kenya. It addressed the question of what was determining state (public) policy from 1963 to 1973. Behind this question lay a much more ominous concern that had dominated Kenyan 1  The concept of a problematique came out of a radical social science developed by Frenchspeaking scholars, including Samir Amin, from the 1970s. It essentially meant a concept used within a body of a theoretical discourse within a certain body of knowledge like Marxism.

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politics up to that point in time: whose interests did such policies serve? In the British system of government which former colonies like Kenya inherited after independence, bureaucrats were supposed to be technocrats trained in the art and science of public administration. But that art and science assumed certain values that bureaucrats were supposed to pursue or implement in government. These values were formulated into what was called “public policy”. Inherent in these policies were interests to be served when goals (or outcomes) were arrived at. These interests were not devoid of attachment to, or origination from, certain persons or groups of persons in society. This is why the political economy approach to public policy analysis became persuasive in studying government in Africa: it struck at the central chord of the alpha and omega of policy formulation and implementation in Africa by bringing forth the significance of interests and the struggles that occur inside and outside the state in formulating and implementing public policy. It is with these insights in mind that the chapter turns more specifically to the Kenyan situation.

The Shifting Policy Debates in Kenya Policy studies in Kenya have in large part followed the trajectory indicated in the section above. The first decade after independence was dominated by a public administration perspective and its relevance in a country where development was an urgent public policy objective. The tone was significantly radicalized in the 1970s and especially in the 1980s, much of it in response to the fundamental economic policy reforms that the donor community led by the World Bank and the International Monetary Fund had imposed on the African countries after the former had issued its “road map” for accelerated development in Sub-Saharan Africa (World Bank 1981). This phase of “defiance” lasted throughout the rest of the last century but gradually became a third phase focused on restoring what had been lost in the days when economic policy had been largely driven from Washington. Much of this third phase has been devoted to reforming political structures to facilitate a more democratic and participatory system, reflecting the political developments in the country and especially the adoption of a new constitution in 2010. It is possible, therefore, to divide the first 50 or so years since independence into three phases: (1) the development phase, (2) the defiance phase, and (3) the restoration phase. Each has its main intellectual features and they are summarized in Table 16.2.

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Table 16.2  Main features of policy debates in Kenya, 1960–2020 Feature/phase

Optimism 1960–1975

Defiance 1975–1995

Restoration 1995–2010

Perspective on state Main focus Principal theory Primary issue

Neutral agent

Repressive actor

Embedded agent

Policy/administration Public administration

Politics Marxist

Policy/politics Democratic

Making bureaucracy development-oriented

Transforming state through mobilization

Challenging elite autocratic habits

Source: Author and editors

The Period of Optimism, 1960–1975 In their administration of Kenya, the British used a highly centralized system of government, anchored around the governor, and a decentralized administration in the provinces which was run by provincial commissioners who ruled more or less by fiat “in the name of the crown” over the African “natives”. Below these political demigods were a hierarchical system of exercising colonial authority from the district commissioner to the division officer, the location chief, the sub-location sub-chief, and village headmen in that descending order of power. Several books and articles have been published describing, analysing, and at times denouncing this essentially authoritarian system of public administration (e.g. Mungeam 1966; Berman 1990). In the purely African part of colonial Kenya, the “natives”, from the advent of colonialism up to the dawn of independence, had a very minimal voice in the way they were governed. It was a system created for the British and their settlers in Kenya with the local population being harassed and treated in a humiliating manner. The colonial administration, therefore, was not just authoritarian; it was racist. This authoritarian racism was particularly pronounced in the way the different Kenyan races were “represented” in the colonial legislative council (LegCo). Kenya was officially declared a colony in 1920 by the British government. This essentially meant that Great Britain and her settlers in Kenya were to rule the colony and derive economic benefits from it, without the “natives” having any say on the way their labour and resources were used by the colonial power. At independence, the nationalist government repealed some of the colonial acts but kept others, notably the infamous Chief’s Authority Act.

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It gave enormous powers to the chief to arrest, detain, and even confiscate the property of individuals deemed to have been acting “in a manner likely to cause the breach of peace” within the jurisdiction of a chief. The same applied to the system of provincial administration which had been used as a political control mechanism over the “natives”. None of these instruments of control was repealed until much later, for example through the Chief’s Authority Act in the 1990s and the system of provincial administration through the new constitution that was adopted in 2010. The new government, however, was anxious to define its path forward. In 1965, Tom Mboya, then Minister for Economic Planning and Development, produced Sessional Paper No. 10 African Socialism and Its Application to Planning in Kenya (Republic of Kenya 1965). This was meant to imprint in the minds of Kenyans that the Kenya African National Union (KANU) regime in power had a new and indigenous philosophy— or ideology for that matter—for developing Kenya which would inform public policy to tune service delivery towards establishing a society based on what was defined as “mutual social responsibility” among citizens. There were three issues that came to preoccupy the students of Kenya’s post-independence politics. The first was whether the new document on African socialism really was “African” and “socialist”. The second was how well equipped the Kenyan bureaucracy was to serve as engine of development. The third concerned what kind of political system was needed to promote the objectives inherent in the new policy strategy. S essional Paper No. 10: African and Socialist? Mboya’s sessional paper became indeed a leading document even after he was murdered in 1969. It did not change the economic structures in any fundamental way. The Kenyan policy of development remained within a capitalist rather than a socialist mode, for example, the agricultural policy built on the colonial system. Land ownership continued to be based on “the willing buyer willing seller” principle. No moratorium was placed on the size of land once owned. Primacy continued to be given to the high-­ value areas where commercial and large-scale farming took place mainly for export agriculture. Successful peasant commercial farmers became appendages to this system as in the case of the Kenya Tea Development Authority (KTDA) (Njonjo 1981; Cowen 1981). In the industrial and manufacturing sector, the Kenyan African presence was confined largely to the managerial level; ownership and control continued to be in the hands

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of multinational and transnational capital, and the politicians had to take cognizance of this reality in shaping state policy (Kaplinsky 1979). Barack Hussein Obama, the father of the former US president by the same name, while serving as a senior official in the Ministry of Finance and Planning in Kenya, observed that the significance of Mboya’s sessional paper was not that it was socialist (in fact it was not according to Obama), but that the Kenyan government “has tried to clarify the situation in so far as it is possible to do so in the light of its present planning needs” (Obama 1965: 26).2 These planning needs, according to the same source, included the objectives by which this country should be guided but also the policies, through which the country hopes to fulfil these objectives, setting out targets, taking into account priorities, and showing ways by which to achieve these targets. More specifically, Obama observed, just to drive home the fact that the paper had very little to do with socialism and more to do with normal capitalist growth and development, that the document was cautious about nationalization and more emphatic on capitalist growth and accumulation (see also Hyden, Jackson and Okumu 1970). Obama, on his part, was much more concerned about dealing with concrete problems of inequality which were emerging in Kenya: “the disparities in our country such as the concentration of economic power in Asian and European hands while not destroying what has already been achieved and at the same time assimilating these groups to build one country” (Obama 1965: 28).  ureaucracy or Development Administration? B The first decade after independence was characterized by a sense of euphoria and optimism that the nationalist struggle would pay off in terms of improvement of living conditions for everybody. Those who had taken over the reins of power expected a system of administration that would advance this objective. There was a problem however, because by retaining the control-oriented system of provincial administration, it was difficult to inject a development “spirit” that would be flexible and innovative enough to meet the expectations of politicians and the public. This was the issue with which the book on Development administration: The Kenyan 2  Obama Sr was continuing a debate on the critique on the Sessional Paper that Dr Ahmed Mohiddin of Makerere University had started in a previous issue of the same journal. See A. Mohiddin, “Sessional Paper No. 10: Neither African nor Socialist,” East Africa Journal, March 1969.

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experience (Hyden et  al. 1970) was grappling. The contributors to this volume assumed that it was possible to change human behaviour in ways that would bend the structures in a developmental rather than control orientation. Although Schaffer (1969) in an earlier review of the experience with development administration in developing countries had suggested that such a change would not be feasible, the contributors argued otherwise. Schaffer’s observation proved to be more in line with what degree of change that the Kenyan system at the time was ready to accept. The KANU government wanted to do reforms on its own terms and appointed the Ndegwa Commission to provide an expert review of the institutional structures of the public service (Republic of Kenya 1971). It was the first in a row of public service reforms aimed at making it more efficient and effective (Hope 2012). These reform efforts were sometimes pursued in agreement among politicians and civil servants, but there were also examples of the opposite. Nothing illustrates this better than the fate of the “dream team” which was appointed by the president Moi in response to the World Bank’s pressure for reforms in the civil service in Kenya (Kamau and Sunday, 10 February 2020). This dream team did not last more than 18 months. There were more powerful class and political interests within the state, beginning with the presidency itself, that were antagonistic to the very reforms that the World Bank wanted to pursue through its dream team made up of members of Kenya’s professional elite. Although donors and government most often agreed about policies to be adopted, as this case illustrates, when political and economic elite interests were at stake, such was not necessarily the case. In fact, throughout the Moi period, these differences became salient and were one factor behind the growth of pressure on Moi to give in to constitutional reforms and new elections in order to pave the way for regime change and a new set of policies in Kenya.  ne Political Party or Two? O The Kenya African National Union (KANU) had won a majority in the pre-independence election, and once it took over government, it abolished the federalist constitution that it had agreed to at the Lancaster House conference in London together with the main opposition party, Kenyan African Democratic Union (KADU). The latter which was an advocate of federalism agreed to close and join KANU in 1965 realizing that it was better off being inside than outside government. Tensions were

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now apparent inside KANU, and they were exacerbated by ideological disputes that arose among those in favour or opposed to Sessional Paper No. 10. Obama, as an influential critic, argued that the Kenyan government could only ignore the risk of sitting on a future time bomb by addressing the relationship between social inequality and political discontent. He was especially concerned about the dual nature of the Kenyan economy. He argued for a more clear-cut commitment to assisting the “African” areas which had been overlooked by the colonial administration. This issue had become increasingly salient in the second half of the 1960s, and a group of radical veterans from the nationalist struggle, Jaramogi Oginga Odinga and Bildad Kaggia, decided to break away from KANU in 1966 and form a new party, Kenya People’s Union (KPU), with a socialist profile that contrasted to KANU’s blander version of it. Its manifesto titled The Wananchi Declaration has been paid little attention by scholars except in the works of Colin Leys (1975) and Susanne Mueller (1984). It was the only coherent party manifesto that offered a more consistent social democratic alternative to Sessional Paper No. 10. KPU lasted only three years before it was banned. Two factors seem to have played an important role: first, the internal ethnic contradictions on which elite power struggle for the control of state was based, and second, foreign ideological and economic interests that capitalized on these contradictions to outdo each other in gaining control of the Kenyan state to hoist a neo-­ colonial regime that would rule Kenya even after Kenyatta died in 1978 (Attwood 1967; Nyong’o 1989). The repressive nature of the state, monopolizing the making of public policy, criminalizing public discourse on controversial policy issues, and silencing critics through draconian measures such as detention without trial, forced exile, and even physical elimination became the prevailing political culture of fear that Kenyans lived under from the late 1960s, through the 1980s to the early 1990s when the long pressure for democratic reforms finally succeeded in forcing the Moi regime to accept multi-party politics in November 1991. The period 1980 to 1991 was also a period of economic and political decay. Moi’s authoritarian politics did not go well with sustained reforms recommended by professional public policymakers and even the Bretton Woods institutions. Data showing domestic capital accumulation, agricultural exports, and the impact of foreign aid and GDP growth rates plus GDP per capita demonstrate essentially a “failing state” during this period.

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The Period of Defiance, 1975–1995 In the light of the increasingly hard conditions facing Kenyans both economically and politically, it is no surprise that the thin veneer of the state no longer could hide the fact that it was not just an autonomous agent but rather a repressive actor that benefitted some at the expense of others. Yash Ghai and Patrick McAuslan had drawn attention to this issue in their study of public law and social change, an analysis of how public law stitches together the sinews binding the colonial and post-colonial state into a seamless web while safeguarding very similar and comparable class distinctions in the Kenyan society (Ghai and McAuslan 1970). The accoutrements of judges and justices in the judiciary, the uniforms in the security forces, and laws that govern the sanctity of private property are but exterior visible signs of how the very core of state policy and practice continued, and continues, to be colonial in post-(in)dependent Kenya. So how did this neo-colonial character of the state shape, aide, impair, and at times even undermine the development “choices” of public policy in Kenya? As the two authors point out, it is not the law per se that is important to study; more important are the social, political, economic, and cultural interests that law, and the administrative powers that come with it, seek to institutionalize in society as the seemingly immutable powers of the state. After all, this is the essence of the Marxist perception of the state as the centre of cohesion of contradictory interests in a society where the interests of the most dominant social class, cultural entity, or religious order finally become enshrined in state power as the ruling ideology, cultural norm, or religious belief as ordered by a powerful deity. Their book shows how from colonial times racial domination was enshrined in public law in political administration, the legislation of law itself, agrarian relations, and how this was transferred almost lock, stock, and barrel in the post-colonial state to serve the interests of an emerging African bourgeoisie. Leys (1975) delved into this issue in great detail. He showed, for example, how public policy on land ownership, patterns of agricultural development, and import substitution industrialization were heavily influenced by the emerging African bourgeoisie and its external allies. Like Frantz Fanon before him, Leys found this African bourgeoisie mainly in three sectors of the economy: the import-export trade, state bureaucracy, and agriculture. All were closely related to, and quite often dependent on, foreign capital. This is what made the African bourgeoise to quite often make decisions which were in their own  interests but not necessarily in the interest of

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developing of what Mkandawire (2010) much later referred to as a “national, developmental and democratic state”. Some studies on dominant class (or elite) interests and their impact on the developmental outcomes of public policies in Kenya had come to virtually the same conclusions as Mkandawire (Nyong’o 1988). To what extent has this public policy orientation been developmental, and developmental in whose interests? In the Marxist perspective, the state serves elite interests in different degrees, depending on the power and influence wielded on the state by the interest bearers. Thus, civil servants, or state bureaucrats, have interests peculiar to themselves especially that of conserving the powers of the state that reproduces their positions, even if at times it is at variance with the ruling political elite. In Kenya, those who have served as ministers in government and have attempted policy changes not supported by the civil service must have heard the derisive remarks that the civil servants make when the ministers are out of sight: “hawa jamaa wanakuja na wataenda na policies zao; sisi tuko hapa permanent and pensionable!” Which simply means “these characters come and will leave with their policies: we shall remain here permanently and be pensionable”. That is what is called the power of bureaucratic conservatism or nowadays is acknowledged in populist political circles as the “deep state” that undercuts the will of the elected leaders. The “relative autonomy of the state” thesis argues that while pluralist and capitalist pressures exist and seem to influence the state, the state does have its own interests, and it is those interests that largely determine policy, especially when they happen to coincide with dominant class interests in society (Nash and Rich 1975). Nicos Poulantzas (1978) was perhaps the best advocate of this theory of the state. To him, the state was not simply an instrument in the hands of a given class but more the point of cohesion of contradictory class interests in capitalist society. Because capitalism created a system of individual competition, they all needed the state as an arbiter, the keeper of the law, the determinant of something as vague as “national interest”. It is this relative autonomy of the state that makes a government minister, in office for a brief period, be dismissed by the occupants of state bureaucracy on “permanent and pensionable terms”. It is the same autonomy that ensures the smooth operation of capitalist society and its ability to benefit the capitalist class. With all the ethnic, clan, and racial contradictions that exist within the capitalist class in Kenya, the latter is in need of a system of government that is predictable and can referee

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among conflicting interests under laws and regulations generally contested but in the final analysis acceptable as legitimate. This period was an awakening from the relative innocence of the first period when policy and administration were taken to be the ultimate concern for enhancing development. Beginning in the mid-1970s, there was an increasing realization, especially among students of policy and politics that the state is not autonomous or neutral but in fact serves specific social and economic interests advanced by those in control of the state. This class analysis constituted an act of defiance of the mainstream policies that were launched in the name of Structural Adjustment: in Africa beginning with the 1981 World Bank Report on how to accelerate development on the continent. The report crystallized the opposite side in political economy analysis—the neo-liberal taking the stand that the problem in Africa was that it was too big and bureaucratic; the Marxists arguing that the issue was rather whose interests the state was serving. These were the frames within which public policy was debated throughout the 1980s. The Period of Restoration, 1990–2010 This period deserves its name because it was very much a matter of recovering from the hardship years of the Moi presidency. The first notable step was the multi-party election in 1991. No such election had been held since independence. The period culminated in the adoption of the country’s new constitution in 2010. The 1991 election was held in the middle of an economic crisis that was to last until Moi left office in 2002. Karuti Kanyinga (18 March 2020) summarizes the crisis this way: Moi came to power in 1978. Economic growth was at 6.9% after a drop from 9.1% in 1977. During his leadership, and specifically from 1980, growth considerably declined. Growth dropped from 7.6% in 1979 to 5.6% in 1980. Kenya’s growth did not pick up thereafter during his reign. It declined much further in the 1990s. By early 2002, when Moi was leaving office, growth had dropped to 0.6%.

The Institute of Economic Affairs undertook a study, through scenario building, that tried to see how Kenya could get out of this process of creeping socio-economic decay enshrined in state failure. The result was a publication called Kenya at Crossroads (IEA 2000). It had four scenarios in mobilizing to defeat the KANU regime at the 2002 elections. The

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Institute had started in 1999 to work with opposition groups in political parties and civil society organizations, to seek unity in the opposition to coalesce around what the study labelled the “Flying Geese” scenario. It explores the renaissance of Kenya through a determined effort to reform the social, cultural, economic, and political models in force. This effort is spearheaded by a new leadership which is armed with a vision and the conviction that Kenya deserves better and can be more than it presently is. The process of changing the regime was a prolonged and complicated process, but it finally succeeded in triumph when KANU collapsed at its party convention in mid-2002, and the Rainbow Alliance that broke away from KANU joined the opposition National Alliance Party of Kenya to form the National Rainbow Coalition (NARC). The election in December 2002 was a breakthrough moment for Kenya. An era of presidential authoritarianism was coming to an end. An age of politics of reform was at Kenya’s doorstep. Although the NARC government achieved substantial reforms to re-engineer economic growth, major constitutional reforms that substantially rearranged access to state power did not take place until after the crisis of the failed elections of December 2007. The subsequent enactment of the 2010 Constitution heralded an age of reform with the emergence of two structures of government, “separate but interdependent”: National and County Governments. The system was appropriately called “48 governments, one nation”. How successfully this subsequently works in terms of democratic governance, enhancement of human and people’s rights, service delivery, and “national development” will remain a bone of contention in Kenya’s academic and political discourse (Ngigi and Busolo 2019). For example, to what extent has Schedule Four of the constitution on “division of functions” been used with reference to resource allocation, service delivery, and developmental public administration between the national and the 47 devolved governments or counties? To what extent have resources followed functions in this innovative public administration structure? Have constitutional reforms substantially changed the dominance of the business elite over public policy and the Eastonian authoritative allocation of values by the state? (Easton 1953). The most important initiative that the National Rainbow Coalition (NARC) government took soon after coming into power was to develop its own development agenda based on a manifesto titled Democracy and Popular Participation. Attempts by the bureaucracy and the donors to impose the World Bank’s Poverty Reduction Strategy Paper (PRSP) and the KANU government’s implementation strategy for this blueprint under

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the Action Plan were rebuffed by NARC’s Ministry of Planning and National Development. Instead, the Ministry constituted an advisory team, comprising academics and renowned social and economic planners, to transform the manifesto into an economic strategic plan that could guide the development agenda for its first five-year term. The Plan, discussed widely for two months within and outside government, was finally launched by President Mwai Kibaki in June 2003 as NARC’s Economic Recovery Strategy for Wealth and Employment Creation: 2003–2007. The concept of recovery is worth taking note of. As we have seen earlier, the Kenyan economy was pretty much in “intensive care” by the time Moi was leaving power in 2002. The aim of the NARC government was first and foremost to recover lost ground and lost opportunities through a recovery strategy before developing a long-term development strategy. New policies and approaches were needed to increase revenue collection. Thus, the policy adopted was to reduce the tax rate while widening the tax base. In tea growing regions like Kisii County, farmers had long stopped delivering tea leaves to the factories due to poor roads and low farm gate prices. The recovery strategy involved increasing farm gate prices for all agricultural commodities. In the dairy sector, milk production more than quadrupled when farm gate prices were doubled, and the Kenya Cooperative Creameries reopened as the “new” KCC. A social development agenda was initiated giving monthly stipends to senior citizens and employing youths on the kazi kwa vijana (work for the youth) programme. Within the first year, Kenya’s rate of economic growth had gone from 0.2% in early 2003 to 4% in June 2004. With these measures in place, it was then possible to envisage a longer-term development agenda for the country. This process began by putting in place a National Economic and Social Council (NESC) which would advise the government on long-­ range social and economic planning. The NESC, comprising renowned Kenyan and international policymakers, investors, and public servants, was charged to develop a Vision 2030 as blueprint for Kenya’s development agenda. The vision was indeed developed and launched and remains the centrepiece of public policy in Kenya. But political contradictions emerged that have impaired both the performance of NESC and the systematic implementation of Vision 2030. The reformist NARC government did not last long. Within a matter of three years, the high hopes that Kenyans had in its reform agenda were dashed as the coalition broke over the constitutional reform agenda, leading to the 2005 constitutional referendum, the outcome of which put the

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final nail on the NARC coffin. The results of the 2007 general and presidential elections led yet to another even graver political crisis remembered for its violence, loss of both lives and property, and cases of gross human rights which by being taken to the International Criminal Court in The Hague divided the nation even further. Attempts to heal the wounds of the 2007 post-election violence through international mediation produced a rapprochement among the contending political parties, Party of National Unity (PNU) and Orange Democratic Movement (ODM), by forming a coalition government. The coalition government continued substantially by carrying on with the policies of the NARC government and largely succeeded with this agenda by implementing Vision 2030 programmes, respecting the central role of NESC in policymaking and enacting the laws that were envisaged to be in place within five years following the 2010 promulgation of the new constitution.

Conclusion The study of public policy has swung between optimism and pessimism, liberalism and Marxism, and managerialism and radicalism. It has been a long and twisted journey over 60 years that has now culminated in a focus on how the new constitutional set-up with one national and 47 county governments will work. For the benefit of those who are expected to get the most out of devolution—sisi huko mashinani (we here at the grassroots)—it is important that the post-independence goals of development administration are finally able to blossom. Such is the promise that political leaders representing the people in their respective constituencies must uphold. The answer lies with how far these leaders have learnt from the country’s experience and how far they are ready to transcend their own interest as a policy driver. This is a rich research agenda for Kenyans and others over the next few years.

References Attwood, William. 1967. The Reds and the Blacks: A Personal Adventure. New York: Harper & Row. Berman, Bruce. 1990. Control and Crisis in Colonial Kenya: The Dialectic of Domination. Columbus, OH: Ohio State University Press. Cowen, Michael. 1981. The Agrarian Problem: Notes on the Nairobi Discussion. Review of African Political Economy 8 (20): 57–73.

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Easton, David. 1953. The Political System: An Inquiry into the State of Political Science. New York: Alfred K. Knopf. Ghai, Yash P., and Patrick McAuslan. 1970. Public Law and Political Change in Kenya: A Study of the Legal Framework of Government from Colonial Times to the Present. Nairobi: Oxford University Press. Giglioli, Pier Paolo. 1975. “David Beetham, Max Weber and the Theory of Modern Politics”, Book Review. Italian Political Science Review 5 (3): 563–566. Hope, Ronald K. 2012. Managing the Public Sector in Kenya: Reform and Transformation for Improved Performance. Journal of Public Administration and Governance 2 (4): 128–143. Hyden, Goran, Robert H. Jackson, and John J. Okumu, eds. 1970. Development Administration: The Kenyan Experience. Nairobi: Oxford University Press. IEA. 2000. Kenya at Crossroads: Scenarios for Our Future. Nairobi: Institute of Economic Affairs and Society for International Development (SID. Kamau, Macharia, and Frankline Sunday. 2020, February 10. Legacy: The Dream Team that Moi Created. The Standard. https://www.standardmedia.co.ke/ article/2001359839/the-­dream-­teamthat-­moi-­created. Accessed 7 December 2020. Kaplinsky, Raphael. 1979. Readings on the Multinational Corporation in Kenya. Oxford: Oxford University Press. Karuti, Kanyinga. March, 18th 2020. Why the economy performed dismally under Moi. The Daily Nation. https://nation.africa/kenya/news/ why-theeconomy-performed-dismally-under-moi-250904. Leys, Colin. 1975. Underdevelopment in Kenya. Nairobi: Heinemann. Mkandawire, Thandika. 2010. From Maladjusted States to Democratic Developmental States in Africa. In Constructing a Democratic Developmental State in South Africa: Potentials and Challenges, ed. Omano Edigheji, 59–81. Johannesburg: HSRC Press. Mueller, Susanne D. 1984. Government and Opposition in Kenya, 1966–69. The Journal of Modern African Studies 22 (3): 399–427. Mungeam, G.H. 1966. British Rule in Kenya, 1895–1912. Oxford: Clarendon Press. Nash, Elizabeth, and William Rich. 1975. The Specificity of the Political: The Poulantzas-Miliband Debate. Economy and Society 4 (1): 87–110. Ngigi, Samuel, and Doreen N. Busolo. 2019. Devolution in Kenya: The Good, the Bad and the Ugly. Public Policy and Administration Research 9 (6): 9–21. Njonjo, Apollo L. 1981. The Kenya Peasantry: a Re-assessment. Review of African Political Economy 8 (20): 27–40. Nyong’o, P. Anyang’. 1988. The Possibilities and Historical Limitations of Import Substitution Industrialization in Kenya. In Industrialization in Kenya: In Search of a Strategy, ed. Peter E.  Coughlin and Gerrishon K.  Ikiara, 6–50. Nairobi: Heinemann.

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———. 1989. State and Society in Kenya: The Disintegration of the Nationalist Coalitions and the Rise of Presidential Authoritarianism, 1963–1978. African Affairs: the journal of the Royal African Society 88 (351): 229–251. ———. 2002. The Study of African Politics: A Critical Appreciation of a Heritage. Nairobi: Heinrich Böll Foundation. Obama, Barack H. Sr 1965. Problems Facing Our Socialism: Another Critique of Sessional Paper No. 10. East Africa Journal, July, pp. 26–33. ODA. 1995. A Guide to Social Analysis for Projects in Developing Countries. London: HMSO. Poulantzas, A.  Nicos. 1978. State, Power, Socialism. Paris: University of France Press. Republic of Kenya. 1965. Sessional Paper No 10: African Socialism and Its Application to Planning in Kenya. Nairobi: Government Printers. Republic of Kenya. 1971. Public Structure and Remuneration Commission 1970–71 (Ndegwa Commission). Nairobi. Government Printer. Schaffer, Bernard B. 1969. The deadlock in development administration. Politics and change in developing countries 177–211. Scott, Alan. 1990. Ideology and the new social movements. Routledge. World Bank. 1981. Accelerated Development in Sub-Saharan Africa-an Agenda for Action. Washington, DC: The World Bank.

CHAPTER 17

Teaching Public Policy in Kenya: Approaches and Current Issues Patrick O. Alila and Goran Hyden

Introduction Public policy is a key pillar of governance. Likewise, as indicated in the previous chapter, it is a constantly evolving subject. Society and economy keep changing and this gives rise to new issues for policy. In the same vein politics is dynamic, reflected, for example, in regime change, leading to overhaul of policy and occasionally a complete turnaround of national development. The study of public policy rests on a series of general principles that highlight the process of turning issues into policy and eventually into law and practice. To be effective, however, policy studies, as this volume is demonstrating, must be based on a good understanding of country context. No such comprehensive review has been carried out in Kenya for a long time. This is an especially serious void given the country’s

P. O. Alila (*) University of Nairobi, Nairobi, Kenya e-mail: [email protected] G. Hyden Department of Political Science, University of Florida, Gainesville, FL, USA e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 G. Onyango, G. Hyden (eds.), Governing Kenya, https://doi.org/10.1007/978-3-030-61784-4_17

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rapid development, social transformation, and, not the least, its constitutional reforms that have been implemented since 2010. There is a “new” Kenya in need of study—in need of material to teach about it. This chapter addresses the specific issues and challenges of teaching public policy in Kenya in the early twentieth century. It casts them in the context of “governance”—a concept that has been used heuristically in this volume to include the various components of public policy laid out in the Introduction. The general literature on public policy is vast but not all of it relevant for the Kenyan situation. To make sense of it, we initially cover the various theoretical perspectives on public policy that have evolved over the years and thus belong to the body of knowledge that should be shared with students interested in the subject regardless of geographic location. The second part of the chapter is devoted to discussing the main issues arising out of this volume and the specific challenges of teaching public policy in Kenya.

Theoretical Perspectives Anyone charged with the task of teaching public policy today needs to consider two trends that have taken place over the years since the notion of a “policy science” was first launched in the middle of the last century (Lasswell 1956). In the early days, the study of the policy was confined to issues of design and formulation. It was viewed as foremost a technical problem, and it was set in the context of a two-stage policy process with policy being implemented as a protocol to achieve an intended outcome: hence, the well-known notion of a policy input-output system. The initial versions of the policy cycle were confined to four stages or functions shown below:

Formulation—Decision-making Implementation— Evaluation Studies over the years, however, have demonstrated that the empirical reality is much more complex, and theoretical simplification has become an issue because civil servants have difficulty recognizing themselves in the way academics present the policy process (Hoppe and Colebatch 2016). Yet, for this chapter, the notion of a policy cycle with distinct functional components has been adopted to clarify what it entails to understand and teach public policy. More recent theories aimed at capturing the full

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dimensions of the policy process have added the notion of “agenda” and agenda-setting as a precursor of design and formulation (e.g. Grindle and Thomas 1991). Mitullah discussed in Chap. 4 how being able to define a problem and turn it into a policy issue provides an edge when it comes to steering policy in a preferred direction. In whatever way the study of public policymaking is simplified for theoretical purposes, it is important to realize that the policy process rarely moves forward rationally and predictably as the theory may suggest. Figure 17.1, therefore, should be interpreted with this limitation in mind: its purpose is chiefly heuristic.

Fig. 17.1  A common rendition of the policy cycle. (Source: Michael Howlett, M- Ramesh and Anthony Perl (eds.), Studying Public Policy: Policy Cycles and Policy Subsystems, New York: Oxford University Press 2009)

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The analysis of the policy process has moved forward in two important respects. The first is the recognition that it is messy and hardly as predictable as has been presumed. One prominent scholar to question this was Lindblom (1959, 1968) who argued that the policy process is nested in politics which—at least in a democracy—makes it hard to implement any grand policy design. Instead, he saw the outcomes to be incremental—the result of negotiations between political actors with a stake in the policy. Others have followed up on this point and suggested that the policy process is characterized by conflict and that policy analysis is an argumentative rather than rational planning process (Fischer and Forester 1993). Societal interests being part of the policy environment may be mobilized to take action that leads to contestation and thus a continuous but not necessarily smooth implementation process. The second way policy analysis as a field has moved forward is by acknowledging its complexity (Sabatier 2007). It spans many disciplines beyond political science, notably economics and sociology, science and technology, and history. It is not one-dimensional which means that teaching public policy today is quite demanding. The question that must be addressed is how its messiness and complexity can be best incorporated into the curriculum. The starting point must be an acceptance that the study of public policy has both an analytical and political dimension and that, in practice, they overlap to produce outcomes that combine factual and normative components. For example, a policy aimed at reducing child mortality can be assessed in terms of tangible numbers as well as intangible goods, such as morality and legitimacy. Using the overlapping fashion of the five governance components identified for this volume—problem identification, policy formulation, policymaking, policy implementation, and policy evaluation—we propose approaching this issue as illustrated in Table 17.1. Problem Identification and Definition Policies do not come out of anywhere. They have their origin typically in the form of a problem or issue that citizens individually but more often collectively identify as in need of government action. The media, both print and electronic, play an especially prominent role in bringing to attention to those issues that policymakers cannot avoid addressing. The media do so in two related ways. The first is through reporting what is going on in society. It could be a straightforward coverage of an issue, for example, food or housing shortage, that affects the lives of people or it could be a

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Table 17.1  Overview of governance components Component

Main activity

Problem Agenda-setting identification Policy formulation Policy analysis and design Policymaking Authoritative decision-making Policy Structured implementation interaction Policy evaluation Systematic feedback

Technical aspect

Political aspect

Policy framing

Policy entrepreneurship

Targeting and cost-benefit analysis Expert advice

Stakeholder consultation Policy networks

Standard operating procedures Performance indicators

Deviance, resistance, conformity Learning process

Source: Authors

more complicated investigative reporting on an issue such as deaths due to famine that is public but being hidden by the government. The second way is through editorials. The often-stated role of the media in Kenya is to inform, educate, and entertain. It puts media in a position to address wide-ranging issues of relevance to citizens with varying interests. With the spread of social media, the venues by which issues reach the attention of policymakers have been diversified although it is not clear whether, for example, 100 voices on Facebook or Twitter outweigh the influence of a single traditional media source like an authoritative newspaper. The role The Washington Post or The New  York Times plays in defining issues in American politics is a case in point. Much the same goes on in Kenya. Radio and television, and to lesser extent newspapers, play an important role in raising issues that policymakers are unlikely to completely ignore. Being able to identify the problem means having the power to set the policy agenda. This process leads to the selection of some issues at the expense of others (Bauer and Gergen 1968). Priority is given to those issues that catch the policymakers’ attention. Individual government policies tend to be framed with a broader agenda in mind. In some countries, the latter is shaped by ideological convictions; in others, it may more pragmatically reflect other values that are important to those in power (Kingdon 1993). The point is that in whatever way issues are identified as problems in need of public attention, setting the agenda for how to proceed with them is a source of power, an observation that was made already 60 years ago by Bachrach and Baratz (1962) in their analysis of the “two faces of

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power”. Power is evident not only in terms of how person A gets person B to do what he would otherwise not have done. It is also present in who gets to set the agenda by directing public attention on one issue at the expense of another. The primary tool for doing so is framing, that is, ensuring that policy is defined in a specific way that includes some values but leaves others out. It is important to recognize that setting the agenda does not have to be an exclusive exercise involving only government experts and ministers. Widening the process to involve other stakeholders, however, always comes with its own price in terms of time and political squabbles. Governments may not be averse to the idea of consulting other actors, but the incentives to do so are not always appreciated and policies end up as primarily the products of deliberation and negotiation within the government. Specific efforts have been made with the help of the international community to foster more inclusive policy processes, for example, in identifying ways of setting the national policy agenda. This began with the 2000 Millennium Declaration and has been followed up with the implementation of the 2015 Sustainable Development Goals. In the African context, a region-specific project—the African Peer Review Mechanism under the auspices of the African Union—has served the same purpose. As Klopp and Halakhe discussed in Chap. 3, with a growing internationalization of many policy issues, governments face new challenges in organizing the policy process to make it participatory and effective. Policy Formulation Formulating policy involves at least three separate yet interrelated tasks. Firstly, it involves agreeing on objectives that are relevant for addressing the problem; secondly, it must be realistic in terms of resource availability and executive capacity; and thirdly, it needs to be specific enough to reach intended target groups. Policies are deliberate interventions directed towards a change of the status quo. Each such intervention has cost implications that can be measured in individual as well as public terms. It must rest, therefore, on benefits that are convincing to the public and viewed as enhancing the legitimacy of government. In analytical terms, it amounts to balancing effectiveness with efficiency considerations. There are different types of policy tools to do this, for example, Planning, Programming, and

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Budgeting System (PPBS) for financial management purposes and Probabilistic Risk Assessment (PRA) to identify factors that may constitute threats to the successful implementation of the policy. The use of such tools enables officials to monitor the policy from the day it is adopted until it comes to a logical conclusion. There is always a risk, however, that the use of these tools becomes an end-in-and-of-itself. Lindblom warned against such “over-designing” already over 60 years when he described the policy process as a matter of “muddling through” (Lindblom 1959). Design is important but it is not the sole factor that determines the outcome. Getting people to agree and work together is often more important. A common method to ensure that the policy boundaries are fully understood and respected is the identification of the target group, for example, “farmers”, “children”, or “women entrepreneurs”. Any such attempt to delineate the policy typically involves social construction, that is, a descriptive account of the potential beneficiaries. This is a sensitive exercise as groups could be described as “poor”, “disadvantaged”, “dependents”, “positive”, or “deviants” and may get exposed to stigmatization (Ingram and Schneider 1995). One way of avoiding this fallacy is to involve the target group in the design and thereby facilitate a mutual understanding of the value of the policy and how it might be best put into practice. It adds a potentially complicating dimension to the design, but it is often worthwhile since it reduces the risk of conflict at the time of implementation. Zahariadis (2003) also notes that non-analytical skills are often the most crucial factor in getting a policy approved. Simplification and manipulation are means that are commonly used to get it through the policy system. People with such skills may be called “spin doctors” and are typically disliked by the professional policy community, but they cannot be discounted or ignored in the finalization of a specific initiative. Emotional intelligence, communication skills, and teamwork are factors which are nowadays recognized as skills that are important not only for implementation but also the formulation of policies (Mintrom 2003). Policymaking When the notion of a policy science developed in the 1950s led by Harold Lasswell (1956), the objective was to improve the knowledge about the policy process as it was portrayed in government institutions. Policymaking was viewed as authoritative because it had been arrived at using reason and

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been adopted by a minister or cabinet representing the public. Two reasons triggered the move towards a policy science. The first was the growing complexity of issues facing governments in the immediate post-war context and the need to better understand the policy context. Each policy had its own profile and content. The second reason was that there was no systematic knowledge of how policies come about. Civil servants could not be taken to be just “faceless bureaucrats” falling in line with whatever ministers demanded. The coming of a policy science brought attention to the fact that the civil servants are also human beings with their own ideas about how the world should be organized and managed. Knowing more about the policy process itself, as it typically takes place behind closed government doors, was a new challenge but one that was welcome among political scientists, especially those who were critical of the dominant position at that time of value-free social science. As the policy science field developed in the 1970s, it increasingly questioned the concept of a corporate state grounded in consensual decision-making. Wildavsky (1979) made an especially notable contribution by pointing to the increasing polarization within the political elite and its implications for how expert advisors may have to act. His own position, as reflected in the title of his book, was that they often “speak truth to power”. They take an independent stand that reflects their expert knowledge and integrity as public servants. With the recognition that public policy is typically not arrived at in the authoritative way it was initially assumed, students have turned their attention to what happens to specific issues as they enter the policy process. This greater focus has generated studies of how concerns about a given issue catalyse stakeholders into issue or policy networks with members participating jointly in approving the policy. Heclo (1978) who was one of the first to contribute to our understanding of the place of issue networks in American policymaking saw them as voluntary with members moving in and out at their own will. Others adopted a different view and argued that they became institutionalized as “sub-governments” with their own agenda and resource base. This is especially true for studies of European policymaking where corporatist tendencies are more prominent because of the dominant role of the state in the economy. The comparative study by Schmitter and Lehmbruch (1979) on government, business, and trade unions in European countries shows how functional and strategic linkages backed by interdependent resources institutionalize networks that move and manage key policies outside of government. The point about policy

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networks is that they allow for citizen influence, but they may also institutionalize practices that exclude potentially relevant actors and, above all, may limit transparency and public accountability. As such, they are a double-edged sword. Policy Implementation The concept of the institution has featured prominently in policy studies. It has been especially evident in how policies are implemented. Institutions—or their building blocks: norms and rules—have been placed in contrast with the behaviouralist model of “rational man” who acts only to make the most for himself. This economistic rational choice theory has been part of policy studies but with the view of studying policy change rather than stability and predictability. The latter purpose is associated with what has been labelled the “new institutionalism” (also neo-­ institutionalism). According to its original source, March and Olsen (1984), this new approach emphasizes the endogenous nature and social construction of political institutions. Institutions are not simply equilibrium contracts among self-seeking, calculating individual actors or arenas for competing social forces. They are collections of structures, rules, and standard operating procedures that have a partly autonomous role in political life. Human behaviour and choices are embedded in webs of meaning that provide them with an understanding of life. They are guided more by what is appropriate than what is immediately rewarding. Because institutions call for reflection on what is right and wrong, they tend to serve as brakes on social change that would otherwise end up in chaos. It is important to recognize that institutions are not by definition against change. They also facilitate change in an orderly manner by defining rights and duties, regulating how life-chances are allocated in society, and establishing authoritative mechanisms to settle issues and resolve conflicts. According to neo-institutionalist theory, institutions are neither static nor unidirectional or irreversible, but they are viewed as less “efficient” than the case is in rational choice theory because they are encoded in history and defended by insiders for whom they matter. Thus, they are not easily changed or overturned in an arbitrary manner (Andrews 2013). Any such attempt may come at great cost to society. Neo-institutionalism enriches policy studies by transcending the limits of conventional public administration discourse and its origin in human relations or scientific management theories. These are important but in the twenty-first century not

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enough to understand and teach policy implementation. It is not just about efficiency or effectiveness but also about social trust and political transactions. It speaks to governance writ large. Policy Evaluation The final stage in the policy cycle or the fifth component of governance is policy evaluation. Its role is to examine the content, process, outcome, and impact of specific policy intervention. Even though it is portrayed as a tail-end exercise bringing to closure the full policy cycle, it is sometimes also used in a formative manner to lay the foundation for a new policy or mid-term to ensure implementation is staying on course. Although government institutions and other organizations typically have their own mechanisms for monitoring performance, policy evaluation is meant to be impartial or objective. Thus, it is usually led by an outside expert sometimes with an in-house member on the team. Policy evaluation relies on technical and scientific expertise to be done well, but it is at the same a political exercise aimed at providing lessons that can be incorporated for future use. Evaluations strive to reach a dual set of validity criteria. The first is that it is internally valid which means that it measures results in relation to the original policy objectives. Randomized Control Trials (RCT) is one method used for such a purpose. By using a control group, the method allows evaluators to assess the impact of a given policy or project. The second is how far it is externally valid, that is, applicable to other similar cases. While internally validity is reasonably easy to ascertain through documents and interviews, the external validity is more complicated to determine. Yet, for international donors interested in determining what works across national boundaries, external validity criteria have been widely debated in donor circles. The limitation that they have encountered in pursuing a greater focus on results is that objectives are not always clear-cut, nor are goods always tangible. While universal principles and criteria may be applicable to measure certain outputs in education and health, that is not the case in situations where expected policy results are “soft”, for example, behavioural changes. In such cases, reliance on qualitative data and a “thick” description may be more suitable for analytical purposes. Participant observation, structured interviews, literature review, and case studies are ways of obtaining qualitative data.

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It should be pointed out finally that one method does not exclude the use of another. In fact, it is nowadays quite common that policy evaluations rely on what is referred to as a “mixed methods” approach to combine generalizability with depth.

Teaching Challenges in Kenya Finding the right balance between the general and the specific in Kenyan policy studies is the overall challenge in teaching the subject. While there were days when policy analysis or public administration was taught as if it consists of a set of principles that are universally applicable regardless of context, such is rarely the case today. The legacy of Max Weber’s conceptualization of a rational-legal policy system was transferred to the European colonies in Africa and inherited at independence by schools and universities teaching public policy. As discussed in the previous chapter, attempts were made to adapt the teaching to the local Kenyan context. An example was the volume on development administration in Kenya (Hyden et  al. 1970). It provided a descriptive account of the way the Kenyan government was organized and how it managed its affairs. It was also analytical pointing to some of the issues the government faced in its post-colonial political environment. Another significant step towards localizing policy studies was the comparative analysis of Kenya’s and Tanzania’s development strategies (Barkan and Okumu 1979). It was broader in scope and focused foremost on the political side of policy, but it generated interest as a teaching text not only in East Africa but also elsewhere—to the point that a follow-up volume edited by Barkan (1984) was justified because of the demand for good teaching material. Main Issues A generation later, what are the main issues in Kenyan policy studies? Previous chapters have provided a rich empirical and analytical foundation for answering this question. Four issues stand out as requiring special attention: (1) policies are no longer determined merely by national stakeholders; (2) policies cannot be fully understood without their historical roots; (3) policies and politics are often at cross-purposes; and (4) civil servants have an unusually strong position in Kenya. These are issues that merit further study but also serve as useful discussion points in the classroom.

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 he Global Dimensions of National Policy T As a new developing nation, Kenya has always been dependent on external resources, as discussed by Klopp and Halakhe in Chap. 3 and by Jonyo in Chap. 11. This dependence, however, has evolved and changed character over the years. In the early years of independence, international donors were satisfied with putting money into projects and programmes that had been approved in a sovereign fashion by the Kenyan government. Sharing the euphoria that independence had generated in the country, funds were provided to complement local sources. Later on, the same donors moved their position forward to insist on conditions for their funding, culminating with the Structural Adjustment policies in the 1980s and what Anyang’ Nyong’o refers to as a backlash in African countries where definite policy defiance came to characterize not only the academic but also political discourse. Governments could not recognize themselves in the neo-liberal outfit donors insisted upon. While the international donor community eventually realized the limitations of their conditionalities and transited to a period of “partnership”, the issues in recent years have been how to reduce, if not put an end altogether, to aid, dependence. Globalization has encouraged direct foreign investment as a preferred mode of international transactions. With this has come to new and more complex policy issues covered in the two chapters mentioned above. They demonstrate the importance of a pro-active policy stand to guard national and local interests, an issue also covered by Parita Shah in her account of Kenya Wildlife Service in Chap. 8. Her chapter and similar cases across various policy sectors suggest that policy relevance and effectiveness require a strong commitment to local policy goals together with a sense of understanding how the international community works and can be made to serve national interests.  he Historical Roots of Policy T The colonial legacy has been quite strong in Kenya. The British made their rule in Kenya direct, and in serving settler interests in the colony, they transformed the lives of the local population to a significant sense, especially in comparison with its other colonies in West and East Africa. This legacy lived on after independence because it was not seriously challenged by President Jomo Kenyatta and his government. Travelling through rural Kenya 60 years after independence, the same structural features that were inherited at independence are still very much in evidence: the rich farming

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areas of the Rift Valley, the crowded peasant agricultural districts of central and western Kenya, as well as the still backward areas of the North and Northeast. This means that Kenya is a country characterized by deep social and economic inequalities that await addressing but tend to be ignored by the current political elite. Attempts have been made ever since independence to turn political attention to this issue, but those in power have managed to stop such efforts from going far. Mainstream policies in the country continue to prioritize growth rather than redistribution, the issue to which the prominent ILO study drew attention 50 years ago (ILO 1972).  olicy and Politics Not Aligned P The discrepancy in living standards between the rich and poor in Kenya creates an anomaly in politics. Politicians approve a policy that addresses inequalities but acts in the opposite direction when it comes to putting it into practice. This implementation gap is obvious and registered in several of the chapters of this volume. It is easy to dismiss this as greed among the elite, but the issue also has its structural roots. In countries which have modernized and are foremost reliant on an economy in which people participate in politics as organized groups with their own public position on specific issues, policies reflect interests that are ordinarily subject to compromises emerging out of negotiations among key parties. Policies, even if they are viewed as sub-optimal, are agreed upon because stakeholders realize that it is the best they can get. In these situations, policies reflect the balance in politics. There is little, if any, room for arbitrary policy adoption. In Kenya—as in other African countries—political representation is not based on economic interests in the same fashion. Representation, instead, takes the form of communities of consumption for whom the most important objective is to grab as much as possible from the public purse: hence, such phenomena as “Big Man” politics, patronage, and corruption. They are not necessarily condemned because they “deliver”—even if it is at the expense of the public interest. This point is important because the incentives for citizens to organize in collective action to promote the notion of a “public interest” are not very strong when they can free-ride on the shoulders of a strong politician from their community. The discrepancy between policy and politics is further aggravated by the pressure by the international community to adopt policies that align with international agreements that have been worked out by the already

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rich countries and do not respond to the conditions in low- and middle-­ income countries in Africa. The objectives inherent, for example, in the Sustainable Development Declaration of 2015 and its Agenda 2030, make sense to African government leaders more as instruments to obtain external funding rather than as meaningful policy goals to be included in their national development strategies.  he Privileged Position of Civil Servants T Some 50 years ago when the academic debate raged about the neo-­colonial nature of the African economies, Issa Shivji (1976) in Tanzania and Colin Leys (1975) in Kenya characterized the bureaucrats as “petty-bourgeois”, a “class” not worthy of leading national development. In the absence at that time of a more diversified social elite, the bureaucrats became the prime target of blame for the lack of a true social transformation after independence. Since those early days, however, the story of the bureaucrats has diverged. While those in Tanzania have been confined by policy and behavioural regulations—the Leadership Code—the civil servants in Kenya have grown in both wealth and power. Some of this has to do with the more competitive nature of Kenyan politics but also with policies, initially proposed by the Ndegwa Commission in 1970 and later confirmed by the 1979 Waruhiu Committee, to not only give salary increases but also to enable them to have other incomes on the side (Waruhiu Committee 1980). Kenyan bureaucrats, therefore, have got “the best of both worlds”, that is, the security of tenure and the freedom to practice their private business. It is no coincidence, as Anyang’ Nyong’o mentions in his chapter that they look down on the politicians who are not guaranteed permanence because they have to compete in elections every five years. This lack of a clear line between public and private interests makes it difficult to uphold the principle that those hired to work in government, and other public institutions must declare a conflict of interest whenever private collides with public interest. In the current system, there are many ways for public servants to circumvent the principle, for example, by transferring ownership to a relative. It is a feature of Kenyan public administration that tends to undermine the confidence of citizens that public institutions look after their interest. It is also an issue with international partners for whom consistency and certainty in the application of the law is a requirement. Although the 2010 Constitution makes it quite clear that public integrity is a core principle of how the country should be governed, the government still has some way to go to fully live up to this principle.

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The growing role of civil society organizations is a factor that gives hope that Kenya is not going to lose its momentum towards a form of democratic governance in which civic trust underpins public policy in practice. Teaching Challenges As the various authors contributing to this volume have illustrated and the sub-section above summarizes, there is plenty to do to uncover the true nature of public policy practice in Kenya and much that studies like this can recommend for improvement. The current period following the adoption of the new constitution is congenial to taking the issues raised here for further study and debate. At the same time, it is important that the conditions for study policy in Kenya also improve. It leaves considerable scope for improvement and development. This challenge may be summarized in three types: (1) the lack of teaching material, (2) the link between theory and practice, and (3) the relationship between researchers and practitioners.  earth of Teaching Material D Lack of teaching material is not unique to policy studies. It is a general problem in African institutions of higher learning. One reason is the cost of textbooks and other relevant material. Students cannot afford to buy them—only libraries do and often only a small number of copies that are not enough for the rapidly growing student population. That is why it is not common for notes from lectures and tutorials to be the sole basis for learning. Beyond this already distressing situation, there is the question of relevance. Much of the available textbook material at an academic level in Kenya is not produced with the country in mind. Publishers understandably look for big enough markets to justify the costs of production. This could be viewed as a “catch-22” situation: students cannot afford to buy for publishers to produce. Such an interpretation, however, is not necessarily the only one. After all, markets change. In Kenya, for instance, there is increasing pressure on students to really demonstrate an outstanding performance to get a job. Being ready to obtain books that give them an edge over others is not a proposition that dawns on just a few. As Kenya continues to develop, there is a growing potential for academic textbooks. The challenge, therefore, is to produce more such material that fills the gap between the “lecture notes” and the “out-of-place” textbooks that draw only on theories based on the experience of foreign countries. This

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does not mean a rejection of the presence of general principles, for example, of how to do policy analysis or how to administer public bureaucracies, but in a textbook context, these principles must be applied and interpreted in a context that rings familiar for the student. This volume may be viewed as a model for such an exercise. It is written with the specific goal of filling the gap in knowledge. It brings together a team of scholars who know the Kenyan situation well. It relies on persons who can interpret this situation with a perspective that combines the general and the local. Donors who are sympathetic to supporting research in Africa could make a significant contribution by spending their money on initiatives by local African scholars who see the value of also having a comparative perspective represented, for example, by those—Kenyans or others—who work in universities outside the country. If home-based scholars in the donor countries must for administrative or other reasons be intermediaries, the African ownership tends to vanish, and the contextual fabric lost in a distancing theoretical construct.  ink Between Theory and Practice L Producing a textbook is not your average academic exercise or challenge. Like regular research, it needs to rely on one or more theoretical perspectives, but it must make theory come alive so that readers can see how it enriches the understanding of reality. The challenge, therefore, is to ensure there is not too little theory, nor too much of it. The problematic use of theory is evident in policy practice where the notion of “theories of change” has become institutionalized. It is based on the premise that it is possible to “carve-out” a piece of reality and turn it into a project that can be managed as if it were independent of its environment. In delineating what should be included, the project design must be constructed around a theory of change. The problem with this requirement is an overvaluation of what theory can do. These so-called “theories” hardly qualify as such because they are not grounded in ideas that are independent and serve as lenses to highlight and explain reality. Instead, they are home-made constructs to justify policy practice. They are often made in a hurry and lack the persuasiveness to be valid. Thus, the concept of the theory is depreciated while at the same time being expected to produce results. These instances of excessive expectations surrounding the use of theory in policy practice continue despite the fact they tell little about what really happens and limit the understanding of the dynamics associated with policy implementation.

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The opposite scenario is also in play, more specifically in the form of evidence-based management. While hard evidence may be possible to generate and use in certain policy sectors, for example, health, it is far less useful, as indicated above in this chapter, where the subject matter is “soft” and thus does not easily lend itself to precise measures. Yet, it is being applied even in such settings to give the impression that the policy is being produced in a value-free manner. In these instances, practitioners silently accept that there is no theory informing their choice although it is a delusion. The challenge in a country like Kenya which tends to take direction from the practices funded and promoted by the international donor community is to develop a better understanding of how theory and practice come together in ways that are productive and grounded in Kenyan reality. Theory in public policy is a way of throwing light on practice to make it both more relevant and effective. Without a theory based on philosophy, the policy is blind. With too much of it, it becomes a “pie-in-the-sky”.  ringing Researchers and Practitioners Together B There is much that can be done to overcome this shortcoming in Kenyan policy studies. Three measures to do so are discussed here: (1) encourage practitioners to share their experience; (2) create a better understanding of the role of research in policymaking; and (3) bring everyone together in a policy association. Theories are codified practices with the view of making it possible to carry out comparisons across jurisdictions. They are abstract and practitioners cannot always relate to what theory tells them. For example, the notion of “stages” is often questioned because they experience the process, not as well organized into specific activities, but as “messy”, that is, unpredictable (if not outright haphazard). This chasm is unfortunate, and the practitioner’s voice and perspective mustn’t be lost (Hoppe and Colebatch 2016). In some countries, there is a tradition of public servants writing personal reflections on their time in government. Even though these are thoughts that are written down after retirement, they often contain valuable insights into how public policy is made. Writing such books is still rare in Africa although at least one prominent Kenyan public servant, Duncan Ndegwa (2006) has done so and former President, Benjamin Mkapa, has recently provided personal reflections on his time in public life serving Tanzania (Mkapa 2019). It would be a valuable addition to policy

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studies if more such autobiographies could be produced and incorporated into the material that is being used in teaching the subject. The role of research in policymaking is important, but it is not always fully understood and appreciated among public servants, especially politicians. Researchers must be able to “market” themselves in ways that ensure their product is valued. An initiative in this direction has been taken by the Nairobi-based Partnership for African Social and Governance Research (PASGR). Under the Swahili label of Utafiti Sera, translated as policy research, PASGR brings together researchers and policy actors to strengthen the uptake of research findings into policy and legislation. Examples of this network approach include a focus on city transformation in Nairobi, youth employment, and employment creation in agribusiness (www.pasgr.org). The experience seems to be that the more focused the exercise is on a given subject or sector, the easier it is to enhance the understanding of the role that research plays in policymaking. It is generally agreed that an important means of professionalizing an activity is to organize regular forums at which members can present their work for review by their peers. The creation of a policy studies association in Kenya that brings together researchers and policy practitioners in government, as well as representatives of civil society, would be one such way of promoting the advancement of the public policy field. The first step in this direction was taken already in the 1970s with the creation of the African Association of Public Administration and Management (AAPAM) which in recent years has been headquartered in Nairobi. The Association has organized an annual roundtable to address pertinent public policy issues affecting African countries for 50 years. Each country chapter has also been active in doing so at the national level. One possibility, therefore, might be to build a policy studies community that starts with the existing AAPAM chapter in Kenya. Regardless of what avenue is chosen, the objective of bringing stakeholders together to professionalize policy studies would be an important contribution to understanding the role of research and how its uptake might be best organized at various points in the policy process.

Conclusion This chapter has served as a summary of the main points that arise out of this volume while also highlighting the main issues and challenges associated with teaching policy in Kenya. The conclusion that can be drawn at

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this point in the study and teaching of policy in the country is that more needs to be done. This volume may be viewed as a take-off point for a revival of policy studies that truly contribute to a better understanding of the policy process and its various components. It is also an introduction to what the teaching of the subject matter is all about. This book has proved that with organization and goodwill Kenyans can be mobilized to take the lead in this exercise and increase the availability of good study material and chart new avenues of policy research that capture the challenges the country faces as it continues to develop.

References Andrews, Matt. 2013. The Limits of Institutional Reform in Development: Changing Rules for Realistic Solutions. New York: Cambridge University Press. Bachrach, Peter, and Morton S.  Baratz. 1962. Two Faces of Power. American Political Science Review 56 (4): 947–952. Barkan, Joel D., ed. 1984. Politics and Public Policy in Kenya and Tanzania. New York: Praeger. Barkan, Joel D., and John J. Okumu, eds. 1979. Politics and Public Policy in Kenya and Tanzania. New York: Praeger. Bauer, Raymond A., and Kenneth J.  Gergen, eds. 1968. The Study of Policy Formation. New York: The Free Press. Fischer, Frank, and John F. Forester, eds. 1993. The Argumentative Turn in Policy Analysis and Planning. Durham, NC: Duke University Press. Grindle, Merilee S., and John W. Thomas. 1991. Public Choices and Policy Change: The Political Economy of Reform in Developing Countries. Baltimore, MD: Johns Hopkins University Press. Heclo, Hugh. 1978. Issue Networks and the Executive Establishment. In The New American Political System, ed. Anthony S. King. Washington, DC: American Enterprise Institute. Hoppe, Robert, and Hal Colebatch. 2016. The Role of Theories in Policy Studies and Policy Work: Selective Affinities Between Representation and Performation? European Policy Analysis 2 (1): 123–151. Hyden, Goran, Robert H.  Jackson, and Hon J.  Okumu. 1970. Development Administration: The Kenyan Experience. Nairobi: Oxford University Press. ILO. 1972. Employment, Incomes and Equality: A Strategy for Increasing Productive Employment in Kenya. Geneva: International Labour Organization. Ingram, Helen, and Anne L. Schneider. 1995. Social Construction (Continued): Response. American Political Science Review 89 (2): 441–446. Kingdon, John W. 1993. Agendas, Alternatives and Public Policies. New  York: Harper & Row.

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Lasswell, Harold D. 1956. The Decision Process: Seven Categories of Functional Analysis. College Park, MD: University of Maryland Press. Leys, Colin. 1975. Underdevelopment in Kenya. Nairobi: Oxford University Press. Lindblom, Charles E. 1959. The Science of ‘Muddling Through’. Public Administration Review 19: 79–88. ———. 1968. The Policy-Making Process. 1st ed. Englewood Cliffs, NJ: Prentice Hall. March, James G., and Johan P.  Olsen. 1984. The New Institutionalism: Organizational Factors in Political Life. American Political Science Review 78 (3): 734–749. Mintrom, Michael. 2003. People Skills for Policy Analysts. Washington, DC: Georgetown University Press. Mkapa, Benjamin. 2019. My Life, My Purpose: A Tanzanian President Remembers (Also Available in Swahili). Dar es Salaam: Mkuki na Nyota Publishers. Ndegwa, Duncan. 2006. Walking in Kenyatta’s Struggles. My Story. Nairobi: Kenya Leadership Institute. Sabatier, Paul A. 2007. Theories of the Policy Process. Boulder, CO: Westview Press. Schmitter, Philippe C., and Gerhard Lehmbruch. 1979. Trends Toward Corporatist Intermediation. Beverly Hills, CA: Sage. Shivji, Issa. 1976. Class Struggles in Tanzania. New York: Monthly Review Press. Waruhiu Committee. 1980. Report of the Civil Service Review Committee, 1979–80. Nairobi: Government Printer. Wildavsky, Aaron. 1979. Speaking Truth to Power: The Art and Craft of Policy Analysis. Boston: Beacon Press. Zahariadis, Nikolaos. 2003. Ambiguity and Choice in Public Policy. Political Decision Making in Modern Democracies. Washington, DC: Georgetown University Press.

Index1

A Adamolekun, Ladipo, 2 Afro-barometer, 150 Agenda-setting, 30, 47–62, 123, 169, 172, 301 problem definition, 47–62, 301 role of media, 169, 172 Amnesty International, 38, 39 B Barkan, Joel, 15, 66, 69, 71, 82, 224, 265, 309 Baumgartner, Frank, 139, 241 Bill of Rights, 20, 98, 234 Biodiversity, 4, 27, 121, 122, 122n2, 124–127, 129–134, 136 Building Bridges Initiative (BBI), 21–23, 96, 100, 154, 159, 273 Task Force Report, 22, 23, 100, 154, 159, 161 Bureaucratic politics, 4, 90

C Chayanov, Alexander, 11 Chief’s Authority Act, 285, 286 China-Africa relations One China Policy, 192 Standard Gauge Railway (SGR), 184, 191–198 Civil society Greenbelt Movement, 274 non-governmental organizations, 96 Climate change National Climate Change Council, 35 Paris Agreement 2015, 33 U.N. Framework Convention on Climate Change (UNFCCC), 32–34, 37 Communicative action, 164, 166, 167, 170, 176, 178, 179 Constituency Development Funds (CDFs), 112, 234

 Note: Page numbers followed by ‘n’ refer to notes.

1

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 G. Onyango, G. Hyden (eds.), Governing Kenya, https://doi.org/10.1007/978-3-030-61784-4

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INDEX

Constitution of Kenya 2010, 4, 68, 68n1, 105, 121 Constitution of Kenya Review Commission (CKRC) Bomas of Kenya, 76 Yash Ghai, 18, 75, 290 Council for the Development of Social Science Research (CODESRIA), 283 Counter Violence Extremism Policy 2016, 37–40 Counter Terrorism Committee, 38 D Deconcentration, 103, 245 Development administration, 226, 282, 287–288, 295, 309 Development plans, 226, 233, 245 Development problematique, 283 Devolution County Assembly, 106, 111–113 County Government Act 2012, 80 county governor, 22, 106 County Public Service Board (CPSB), 106 implementation tensions, 108–115 Transition Authority, 107, 107n1, 110, 113 District Focus for Rural Development 1983 (DFFRD), 231, 233, 248 Dye, Thomas, 67, 104, 123 E Ekeh, Peter, 19, 157, 242 Equalization Fund, 20, 117 F Fischer, Frank, 53, 302 Foreign aid, 29, 41, 178, 183–199, 204, 205, 216, 268, 272, 273, 289

aid dependency, 185 external resource mobilization, 183–199 Foreign investment, 27, 183–199, 205, 206, 212, 227, 310 Foucault, Michel, 55 G Gender equality, 96, 98, 123 two-thirds gender principle, 98 Goodnow, Frank, 67, 87, 90 Governance network, 250 Gramsci, Antonio, 55 H Habermas, Jurgen, 164–167, 176–179 Heclo, Hugh, 250, 251, 306 Housing policy, 57, 62 Human rights organizations Amnesty International, 38, 39 Open Society, 38, 41, 42 I Independent institutions Auditor-General, 68n1, 145, 146, 153, 155, 156, 229, 230 Commission on Administrative Justice (CAJ), 147 Electoral and Boundaries Commission (IEBC), 151, 152 Ethics and Anti-Corruption Commission (EACC), 20, 147, 151, 155, 157, 235 Gender and Equality Commission (GEC), 147 Independent Policing Oversight Authority (IPOA), 39, 147

 INDEX 

National Human Rights Commission (NHRC), 147 Ombudsman, 68n1, 79, 145, 146 Indigenous knowledge, 53 Institutes of Administration, 246 Kenya Institute of Administration, 246 International Labour Organization (ILO), 184 International Policymakers, 294 J Judicial Service Commission, 153 K Kakeya, Makoto, 11 Kenya Wildlife Service (KWS), 35, 121–139, 310 Kipepeo (Butterfly) Project, 127, 135, 137 Ol Pejeta Conservancy, 127, 137 policy results, 136–138 Kingdon, John W., 77, 303 L Lasswell, Harold, 240, 246, 300, 305 Leonard, David, 248 Leys, Colin, 10, 30, 246, 283, 289, 290, 312 Lindblom, Charles E., 49, 51, 104, 166, 189, 265, 272, 302, 305 Lipset, Seymour Martin, 88, 266 Loewenberg, Gerhard, 68 Lowi, Theodore, 67 M Majimbo Constitution, 74, 105, 107, 225 MakueniCare, 235

321

Mamdani, Mahmood, 12, 93 March, James G., 222, 307 Media Bloggers Association of Kenya (BAKE), 171, 175 Committee for the Protection of Journalists (CPJ), 171 Communications Authority of Kenya, 172, 175 Computer Misuse and Cybercrimes Act of 2018, 164, 170–176, 180 framing, 5, 163–180 social, 168, 170, 175, 176, 252, 303 Mkandawire, Thandika, 30, 283, 291 Mkapa, Benjamin, 315 Mueller, Susanne, 289 N National Cohesion and Integration Commission (NCIC), 147 Natural Society, 10–12, 88, 265, 267, 273 Ndegwa, Duncan, 315 Ndegwa Commission, 228, 229, 288, 312 Nellis, John, 75 Njonjo, Apollo L., 286 North, Douglass, 221, 222, 241, 242 O Obama, Barack H. Sr, 287, 289 OECD, see Organization for Economic Cooperation and Development Office of the Registrar of Political Parties (ORPP), 95 Ojwang, Jackton B., 72, 73 Okoth Ogendo, Hastings G.W., 13, 160 Okumu, John, 15, 224, 245, 265, 309

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Organization for Economic Cooperation and Development (OECD), 125, 204, 205, 208, 213, 217, 248, 258, 259 Oyugi, Walter, 2, 94 P Parliamentary Service Commission, 153 Peters, Guy, 2, 67, 227, 244 Policy cycle, 300, 301, 308 Policy networks, 5, 123, 239–254, 271, 306–307 Policy regime, 5, 257–266 Political parties African, 86, 88, 92 Political Parties Act of 2011, 95, 97 and public policies, 85–100 Poverty Reduction Strategy Paper (PRSP), 293 Principal-agent model, 122, 124–125, 131 Problem definition agenda-setting, 48, 56, 301 elitism, 49–50 expertise, 54 indigenous knowledge, 53 pluralism, 49–50 Public accountability diagonal, 145, 146 horizontal, 8, 69, 125, 144, 146, 179 social, 8, 144, 147, 160 vertical, 8, 69, 125, 144–146 Public Accounts Committee (PAC), 232 Public policy governance component, 3, 302, 303 teaching challenges, 309–316

R Regional Economic Blocs, 249 Rosenbloom, David, 207, 208, 213 Rwanda, 3, 5, 91–93, 178, 193, 197–199, 206, 257–263, 258n1, 267–271, 274, 275 home-grown initiatives, 260 S Sabatier, Paul, 302 Seroney, Jean-Marie, 75, 80 Sessional Paper No. 10 of 1965, 184, 189, 227 Simon, Herbert A., 49, 166, 189, 272, 273 State-nation, 12–15, 19, 262 State, perspectives on liberal, 281 Marxist, 280, 281, 290–292 T Tanzania, 3, 5, 15, 31, 47, 74, 85, 88, 91–93, 127, 135, 172, 178, 184, 185, 195, 197, 199, 209, 246, 257, 258, 258n1, 262, 264, 265, 267–271, 273, 309, 312, 315 Tax policy framework double tax agreements, 204, 206–208, 211, 212, 215 hindrances, 9, 125, 214–217 lack of transparency, 43, 215 Mauritius, 212, 217, 270 tax avoidance, 205, 206, 217 tax evasion, 205 tax treaty policy, 203–217

 INDEX 

Transparency, 5, 37, 42, 43, 97, 150, 155–157, 189, 209, 214, 215, 307 U Uganda, 3, 5, 82, 85, 91–93, 99, 103, 108, 172, 193, 195–199, 209, 257, 258, 258n1, 261, 264, 265, 267–271, 274, 275 United Nations Environmental Programme (UNEP), 31, 129 United Nations Human Settlement Programme (Habitat), 31, 60

323

V Vision 2030, 60, 124, 131, 189, 233–236, 294, 295 Kenya Vision 2030, 189, 233 W Wakhungu, Judi, 35 Wananchi Declaration, The, 289 Waruhiu Committee, 230, 312 Washington Consensus, 30 Wildavsky, Aaron, 306 World Bank, 2, 10, 30, 58, 61, 185, 186, 191, 231, 232, 243, 247, 248, 252, 284, 288, 293 World Wildlife Fund (WWF), 127, 133, 135