“. . . one half of Kenya about which the other half knows nothing about and seems to even care less.” 1950s American writer Negley Farson describing the Northern Frontier Districts.

Ethnic rivalries are a global phenomenon that has spared neither the most established economies nor the developing nations. Kenya is no exception, most notably Northern Kenya which has been haunted by ethnic conflict since time immemorial. The conflicts in Marsabit, in particular, date back to the establishment of the postcolonial African state.  Prior to colonisation by the British, pastoralist communities in the region were grazing on the slopes of the Ethiopian highlands and in the Kenyan lowlands. The establishment of the Kenyan-Ethiopian border by the British colonialist disrupted traditional grazing patterns and resource sharing, and affected how communities relate to each other. The creation of artificial boundaries by the colonialist without the involvement of the local populations created hatred among the pastoralists, distorted grazing patterns and led to competition for natural resources.

The treatment of northern Kenya as a separate region within Kenya and the marginalization of its communities led to demands for secession at Kenya’s independence. When these were not met, the NFD exploded in rebellion in late 1963. Known as the Shifta War, the guerrilla insurgency lasted four years and resulted in massive loss of human life. The war of secession ended when Kenya and Somalia agreed to put their differences aside and signed an agreement in September 1967 that did not involve the insurgents. The agreement left some communities feeling betrayed by others, in particular the Somali whose relations with the Borana were left in tatters.

Conflicts and violence among the pastoralist communities living on the periphery of Kenya take different forms, including cattle rustling, clan and ethnic violence, and the displacement of people. The proliferation of Small Arms and Light Weapons (SALWs), climate change, land and water scarcity, the collapse of inter-communal social contracts, and bad politics have exacerbated this already tenuous situation.

The vast arid and semi-arid upper eastern region of northern Kenya experiences intermittent communal conflict because it shares a porous border with the Republic of Ethiopia to the north and has routes into Somalia which feed the illegal gun market. According to a 2017 small arms survey, the number of illegal arms in civil possession in Kenya is estimated at 750,000; the country has the highest number of unregistered firearms compared to other East African countries. The illegal arms economy is driven by supply from Ethiopia, most notably through the rebel fighters within the country. It is also fed by the al–Shabaab militia group through the Somalia corridor to neighbouring Wajir County. The supply of illicit arms also flows from South Sudan through the Lake Turkana route where unpaid soldiers and rebel fighters are still at large. Easy access to arms and light weapons has increased the severity of armed conflict undermining peaceful co-existence.

The Ethiopian government has little or no control over its porous border with Kenya through which illegal arms are trafficked. This contributed to the Turbi massacre which was linked to conflicts over water points and grazing land between the Gabra and Borana communities.  Despite the formation of peace committees representing both sides, and numerous initiatives by different groups and peace declarations, the conflict has not subsided.

The question of land 

Land remains central to the conflict in Marsabit County, most notably in the Saku Constituency which borders Isiolo and Garissa counties. Unlike other parts of Marsabit County, Saku enjoys a moderate climate and has plenty of green pasture and ample boreholes (mainly within the grazing zones).

Saku shares similar geographic characteristics with the neighbouring Isiolo County, which has experienced conflict with Garissa County. Every pastoral community would like to have access to the green pastures and water points at Saku but the politicisation of access has worsened this conflict.

Skewed policy responses to conflicts over land by government authorities have worsened the situation. Dialogue to address land conflict and establish administrative units has degenerated into ethnic conflict due to failure to ensure proper public participation as enshrined in Constitution of Kenya 2010. There is an “implementation gap” between theory and practice when it comes to land policy that is often sacrificed at the altar of short-term political gain.  The failure by the government to include women, the youth, and the elders of the affected communities in discussions on how to close the implementation gap in order to minimize conflict and achieve durable peace has created an unsustainable environment in Marsabit County.

The state’s failure to determine land boundaries has also exacerbated the situation and the vague demarcation of community land boundaries and the politics of land expansion have further aggravated the problem and intensified ethnic conflict.

The Borana and Gabra

In explaining ethnic conflicts like the Moyale and Marsabit clashes, and the Turbi and Forolle massacres , the standard argument advanced by many interlocutors is that conflicts occur due to competition over pasture and water sources. This reasoning does not really explain the trade in arms and the “political entrepreneurs”. The whole conflict revolves around the battle for votes and wealth as well as the expansion of administrative boundaries. To gain more recognition and support from the electorate, politicians act both within and outside the law to maintain their status, for instance by establishing new administrations units, awarding tenders to those of their tribe and offering lucrative jobs to their families and those from their own tribe. This breeds hatred and conflict as other tribes are left out.

The arms economy is another aspect that is left unexplained. The gun trade is massive business in the vast north and it is mostly the community that does not take part in the conflicts that does the trading. The trade in small arms is carried out with the full knowledge of the security apparatus. Money for the purchase of guns is raised by the community through collections from households and from those in employment. Failure to pay the set amount for gun purchases attracts heavy sanctions and penalties. Once the money is raised, the supplier is provided with the specifications of the arms and ammunition to be delivered at a specific location. Members of the security administration sometimes sell bullets to the communities in conflict at exorbitant prices. All these demonstrates how a weak state, corruption, political entrepreneurship and improper creation of administrative units fuel deep conflict and hatred between the communities.

There is an “implementation gap” between theory and practice when it comes to land policy which is often sacrificed at the altar of short-term political gain.

Conflict in Marsabit is predominantly between the Borana and the Gabra communities. These two warring communities previously lived harmoniously together, sharing compounds and household necessities. They intermarried and agreed on mechanisms to manage shared pasture and water points during periods of drought and in the rainy season. However, the situation has changed over the past decades and people have fled their homes and settled elsewhere.

The Gabra displaced the Borana from Hurri Hills and they resettled in Elle Borr near Sololo town. In their turn, the Gabra were evicted from the Gadamoji region of Saku Constituency during the 2005 Turbi massacre and they resettled in Jirime location in central Marsabit. These incidents point to an increasing rift between the two ethnic groups, which primarily revolves around land politics.

Attempts by the political elite to bring zones with plenty of pasture within “their” tribal boundaries have inflamed the situation. The Shurr region had been in Saku Constituency when former Member of Parliament for Saku, Jarso Jillo Falana, took office. Shurr came under North Horr Constituency in suspicious circumstances during his term.

Similarly, Horronderr and Shegel are in Saku Constituency but there are plans to move them to North Horr Constituency, which will shrink grazing zones for the pastoralists living in the Saku region. This is being done without public participation. Furthermore, Gabra encroachment into regions like Horronderr, which are Borana grazing zones, has led to loss of lives and livestock.

Traditional methods of resolving land issues have failed because of the breakdown of the social compact between these ethnic groups and the deep political divide. The communities have left it to politicians to find solutions but corruption within the local government has led to partial implementation of land policies.

Assigning districts and regions inappropriately to one ethnic group to the detriment of others living in the same area is a major cause of alarm and concern. For instance, two new sub-counties – Turbi and Dukana – were created in North Horr Constituency and gazetted on 7 October 2020. The change brought additional benefits like recruitment into the military and other special services from the national government. With the gazettement of these two sub-counties, other ethnic communities with larger populations felt left out, the skewed land boundary changes and the selective allocation of benefits from the national coffers resulting in more profound division and hatred.

The creation of the two sub-counties has pitted the Borana against the Gabra because it was seen as politically driven process. The land and boundary disputes are made worse by the fact that there are no clear land boundaries between the Borana and Gabra communities who coexist in the same  settlements and share the same grazing lands. The boundary disputes are likely to escalate if the process of demarcation of boundaries by the Independent Electoral and Boundaries Commission (IEBC) ahead of the 2022 general elections proceeds without proper public participation and sensitivity to the conflict.

The Dedha system

The communities of northern Kenya have established traditional methods of managing water resources and pasture. In the Borana community, a management council called the Dedha manages these resources.

The Dedha system breaks down pasture into grazing units (artha) which in turn are divided into several small grazing camps (fora). The existence of Dedha natural resource policies, some of which are incompatible, has resulted in complex rangeland management regimes and given rise to fragmented interventions and inadequate natural resource policies in relation to pastoralism. The majority of pastoral land resources are held by the national government under a controlled access system that regulates the management and utilization of resources.

The Dedha manager (jars dedha) controls access to the resource, with the control being intensified during periods of drought. The management of shallow wells falls under the owner of the well (aba ella) and the person who decides the watering rotation for each water point (aba erega).

Conflict in Marsabit is predominantly between the Borana and the Gabra communities.

Aba ella assigns first rights based on a clan’s membership and affiliation (sunsuma), and ownership. In case the well has extra capacity, the aba erga decides second rights, which are assigned to other clans whilst third rights are accorded to pastoralists from other ethnic groups.

In extreme cases, those moving with livestock (qunn) are granted temporary first rights to water use just like the sunsuma and the owner.

This well-crafted sustainable natural resource management system is challenged by the modern rules where people and livestock can move anywhere across the country. This throws the traditional mechanisms into disarray and makes resource management difficult.

What future for Marsabit?

Marsabit County has in the past experienced intense tribal conflict over the control of natural resources, land boundaries, and more recently, political power.

Devolved governance was meant to guarantee the equitable distribution of national resources. However, in Marsabit County it has ushered in a new era of power struggles, deep hatred and division among the ethnic communities. The divisions between the communities are so deeply entrenched that ethnicity is a common factor in how the county government undertakes development projects and programmes and offers jobs.

There is no one-size-fits-all approach for handling the multifaceted land problems in Marsabit County. The top-down peace-making process spearheaded by the NGOs in collaboration with the state agencies has failed due to lack of well-defined community boundary policies from the state, politicisation of the security apparatus and war as political business.

The United Nations Development Programme (UNDP), in collaboration with the Kenya government and Intergovernmental Authority on Development (IGAD), have spent US$200 million on a five-year integrated peace programme to engage both sides in peace-building. However, to date, the spending of this colossal amount of money has not yielded any remarkable results. The current peace-building process needs to take into account the developing dynamics of conflict in Marsabit.

The county government needs a conflict-sensitive service delivery and development plan instead of playing the tribal card in developing infrastructure, providing job opportunities and services to its community, which is against the principles enshrined in the Constitution of Kenya 2010.

Although there is no all-encompassing approach to diminish the frequency and intensity of land-related conflict in Marsabit County, there are vital considerations that development practitioners, policymakers, national and local administration need to take into account concerning resource management and governance.

The first step is to establish the political will to solve land problems. Securing land and resource governance entails engaging political processes as well as consolidating land social movements. Political will is pivotal as it plays an essential role in how boundaries are mapped and administrative units are established.

The communities of northern Kenya have established traditional methods of managing water resources and pasture.

The second is mainstreaming conflict and conflict mitigation into the planning and implementation process across all sectors and stakeholders and subsequently establishing district peace committees. This structure should be constituted with the help of all local communities and should encourage the collection of vital data relating to conflict in order to forestall outbreaks of conflict.

The interests of the citizens should be prioritized and public participation in land and water resource governance and management should be strengthened, just like in the case of the Dedha system established by the Borana community. Failure to include the views and opinions of the locals, in creating new administrative units and boundaries, for instance, has led to bloodshed in many of the ASAL regions. Government policy responses should be also be void of political interest.

The illegal flows of guns and ammunition must be stemmed and the local populations disarmed. This will help to reduce hostilities among the existing communities. The state security machinery needs to be committed to this duty in order to regain the public’s confidence.

Finally, policy interventions to the build capacities of local customary institutions to undertake water and land governance and management should be the preferred option as, with the support of the state in terms of coordination and resources, these informal institutions are best suited to resolve local conflicts.

The reports that have resulted from the Building Bridges Initiative (BBI) have identified the need for greater political, economic and religious inclusivity as the key issues confronting Kenya. The roots of political, economic, and social exclusion are embedded in Kenyan history, and they must be recognized and confronted for any attempt to promote inclusion to be successful.

This means that Kenya’s politics, economy and society have been polarized by divisions based on race, ethnicity, class, and religion, to name the most historically prominent, since the start of the colonial conquest in 1895. The rulers of Kenya during the colonial era and beyond put such divisions into place by legal measures and political and social usage both before and after independence. This produced a colonial society marked by rigid racial segregation in all aspects of life, including access to political inclusion and economic resources (e.g., the so-called white highlands). Social amenities were also segregated, and employment and leisure activities limited according to race, religion, and economic status.

While legally supported racial discrimination disappeared after independence, other forms of exclusion, grounded in ethnicity, class, and religion, continued to thrive after December 1963. The legal and constitutional framework that concretized those forms of exclusion is what the BBI initiative seeks to alter and overturn through constitutional amendments to provide a new framework for governing Kenya in the interests of all its inhabitants.

Looked at in context, it is clear that this process will only be possible if leaders of the BBI movement take account of past history. For example, Kenya’s constitutional history prior to 1963 represented a patchwork of legal decrees, colonial ordinances, and imperial directives in the form of orders-in-council. There was no single constitutional document setting out rules and philosophies for governance until the publication of the self-government constitution in April 1963. It was set out in an order-in-council and published in the Official Gazette. It came into effect on 1 June 1963. Like other colonial era constitutional instruments, the self-government constitution was imposed by the imperial power. A primary reason for this was that none were marked by negotiations involving all Kenya’s people or their representatives, nor were they a product of compromise and consensus.

A conspicuous example was the introduction of elected representation to the East Africa Protectorate (after June 1920 the Colony and Protectorate of Kenya) Legislative Council (LegCo) and local government bodies. The LegCo passed an ordinance in 1919 providing electoral representation only for Europeans resident in the territory. Europeans made up most of the body, and the then governor allowed official (civil servant) members a free vote. The result was strongly opposed by Asian (primarily from British India) residents, and as a result the British government was forced to intervene and decree, in the Devonshire White Paper of 1923, that Asian residents should have five elected representatives in LegCo and Europeans 11. The African majority was left out, and when the first African member entered the council in 1944, he was a nominated member.

This lack of inclusion for the colony’s majority population and the imposition by the colonial power manifested itself after World War II in the form of the Lyttleton Constitution of 1954 and the Lennox-Boyd Constitution of 1957-58. In both cases, a Secretary of State for the Colonies imposed constitutional arrangements that were rejected by those representing the African people. Acceptance by the European settler (or white highlander) representatives on behalf of the miniscule unofficial European population was deemed most important by the colonial rulers. In these cases, as earlier, it was only a portion of the colony’s elite who participated in constitutional discussions, and once the secretary of state had made up his mind, there was no discussion nor changing of constitutional specifics. Consensus, compromise, and inclusivity were not part of this process.

The African majority was left out, and when the first African member entered the council in 1944, he was a nominated member.

The constitutional alterations introduced as a result of the first Lancaster House conference in early 1960, moreover, continued the practice of elite involvement at the expense the Kenyan masses. As before, another secretary of state imposed a formula for a new LegCo and council of ministers as the delegates at the London meeting failed to reach agreement as far as the future legislative and executive branches were concerned. A major change in 1960 was that the 14 African elected members of LegCo were now the key group, but even they were not able to obtain changes to the new constitutional arrangements Iain Macleod laid before them. They accepted his formula while not all the European elected members did.

This was a significant change as at the conference the British government recognized that Kenya’s future was as a state governed by majority rule with Africans in control of the state. However, the fact remained that this was an imposed constitution discussed among a political elite not truly representative of Kenya’s populace, and not subjected to a referendum. It took almost a year to work out the specifics of the new constitutional arrangements with representatives of the colonial state playing a key part in the proceedings. (A key reason for this is that the colonial state and the British government wished to create a system of representation whereby “moderate” candidates were returned to the new LegCo by African and European voters in what would be Kenya’s last non-universal suffrage election.)

The self-government and independence constitutions emerged through similar circumstances. The political elite, now African-led and divided in two political parties, KANU and KADU, negotiated with the British government regarding the type of successor state that would rule Kenya. Both parties had European and Asian representatives as members of their delegations. As is well known, the second (1962) and third (1963) Lancaster House conferences were deeply divided over the issue of a federal or unitary state. At Lancaster House II, KADU advocated for majimbo, or a federal system of governance with powers devolved to geographically defined regions while KANU stood firm behind the call for a unitary system based on the existing administrative divisions and very much resembling the British model of parliamentary democracy. Here again, a secretary of state had to impose a settlement, this time a framework rather than a detailed constitution. It was left to Kenya’s political elite to work out the specifics of the constitution for self-government.

The fact remained that this was an imposed constitution discussed among a political elite not truly representative of Kenya’s populace.

The divisions in constitutional philosophy together with an inept handling of the negotiations by the leadership of the colonial state, delayed the process during 1962. Following the arrival of a new governor in January 1963, the process speeded up considerably, but agreement on many critical issues was not reached. This left another secretary of state for the colonies to decide the outstanding issues in dispute in March. Not only did the Kenyan political elite fail to agree, but the whole process did not involve participation by the population in the form of public meetings to explain the issues in dispute or a referendum. The self-government constitution (1 June 1963) provided for an extensive bill of rights and sought to institute a governmental structure based on a separation of powers between executive, legislative, and judicial branches, and thus unlike the structure of the colonial state.

However, the final form of the independence constitution, introduced on 12 December 1963, was much influenced by the universal suffrage general elections of May 1963. The victory of KANU in the House of Representatives and Senate opened the way for significant changes to that constitution in the next decade that did away with federalism and established a de facto one-party state. Significantly, it began the retrenchment of the bureaucratic-executive state. This meant that over time the executive branch of government dominated the legislative and judicial through an authoritarian imperial presidency.

Before turning to constitutional developments in the independence period, it is important to briefly examine the political culture and trends that marked the colonial era. Until 1961, constitutional arrangements were characterized by the politics of race. Kenya’s rulers conceived of the colony as a territory of several distinct racial groups. This vision was underpinned by a firm adherence to racist ideas of Social Darwinism which emphasized inequality among humans and a need for exclusion in political, economic, and social facets of colonial life. Segregation rather than integration was the mantra of colonial officials, settlers, and missionaries. As noted, the politics of race began to change in the early 1960s to be succeeded by the politics of ethnicity which also had its roots in the colonial decades.

Both the politics of race and ethnicity shared some common elements in terms of political strategies and actions. A few will be mentioned here as they had an influence on constitutional developments as well as remaining influential in independent Kenya. Divide and rule has been an enduring part of Kenyan political history. Keeping the population divided lessened opposition to ruling groups as well as privileging certain racial and ethnic groups and disadvantaging others (collectively most of the population). The setting of the elite against the masses or the big men against the little people is another enduring part of Kenya political practice. It is influential whether applied to racial or ethnic politics. In addition, a political practice that emerged in colonial Kenya burst forth again after independence. This is what some of Kenya’s colonial governors viewed as an “opposition mentality.” After 1923, Kenya’s European politicians enjoyed considerable influence, but could never take control of state power. This led to the adoption of European obstructionist opposition in LegCo and elsewhere combined with a refusal to support reformist programs in the political, economic, and social spheres. Their politics was that of irresponsible attack on the colonial state, knowing that they could never win control of that state in any democratic election.

A similar situation existed from 1969 until 1991 when the single party KANU government led by all-powerful presidents could not be democratically influenced or changed. That situation was the product of a neo-patrimonial political system with roots in the colonial era. Patrons (with presidents as patron-in-chief) ruled by gaining clients whom they bound loyally to them using state resources. This perpetuated the divisions noted above and also the on-going dichotomy of the elite against the masses, oligarchy vs democracy, and exclusion and inclusion.

The setting of the elite against the masses or the big men against the little people is another enduring part of Kenya political practice.

These themes and the practices associated with them impacted post-independence history and produced many of the issues highlighted by the two reports of the BBI taskforce. These political factors have been, and are, closely tied to many of the critical, and most divisive, issues confronted in any study of Kenya’s history since the end of 1963. Prime amongst those are devolution or majimbo, unequal access to national resources, and income inequality with access to land right at the top. Others noted in studies of that historical period include questions relating to the “ownership” of Kenya. Does it belong to all Kenyans or to a few? Can a Kenyan citizen live anywhere within the nation’s boundaries? How can gender inequality be fruitfully addressed? Another unaddressed issue is the so-called “neglected north” of Kenya that has been “left behind” in many ways. All these can be directly tied to policies and practices that have produced exclusion, at least in theory, and can certainly be addressed, in some measure, by constitutional changes.

Changes by means of constitutional amendment were relatively common during the second half of the twentieth century as that period witnessed several “change the constitution” initiatives. The first of these emerged immediately after Madaraka Day (June 1, 1963), and a key demand and goal of Prime Minister Jomo Kenyatta’s government was to alter the procedure for amending the independence constitution. Mzee Kenyatta was partially successful in achieving change at Lancaster House III, though it was not the result of negotiations and compromise with the KADU opposition leaders. The majorities required in both houses of parliament were reduced for certain categories of amendments, and a procedure for a national referendum was inserted in the independence constitution, although it would not be used for several decades.

The changes, the KANU government’s failure to implement portions of the independence constitution, and the demise of KADU in November 1964 opened the way for constitutional amendments that established a republic with an imperial presidency (itself reinforced by further amendments such as the 10th of 1968) and the seeming end to devolution through the elimination of regional powers and a bicameral legislature as well as periods for Kenya as a de facto one-party state (1964-66 and 1969-82). All amendments prior to the end of the century were achieved by parliamentary vote rather than by a national referendum. Many amendments to the constitution were passed quickly and with minimal debate. For example, the amendment opening the way for the “little general election” of 1966 was approved by parliament in two days as was the 15th amendment of 1975 (the so-called Paul Ngei amendment). The infamous 19th constitutional amendment of 1982 (that made Kenya a de jure one-party state) was also rapidly approved with no opposition on the second and third readings. A key characteristic of this period was that constitutional change was politician-driven (in some cases by the president himself) rather than people-driven.

The history of amendments in independent Kenya is thus important to take into consideration. The return of multipartyism in 1991 was a result of, and produced additional, change the constitution initiatives, but the changes advocated were on the whole different from those of previous years as they called for democratization of the political system and an extension of civil liberties. The failure of political pluralism to bring these about or to remove the autocratic and corrupt KANU regime of President Daniel arap Moi led many to move from demands for constitutional change by amendment to calling for the introduction of a new constitutional order. Such campaigns for change became increasingly strong during Moi’s last term as president (1997-2002). A key characteristic in this drive for change was the continued conflict between those who wished a people-driven process of constitution-making versus those advocating a politician-driven pathway to a new constitution.

A key characteristic of this period was that constitutional change was politician-driven rather than people-driven.

This conflict came to the fore after 1999-2000 when a serious attempt was launched to create a new constitution with the creation of the Constitution of Kenya Review Commission and the appointment of distinguished law professor Yash Pal Ghai as chairman of the review commission. The commission began to collect public views on constitutional reform during 2001 and 2002 for what many Kenyans hoped would be the basis for a new, people-driven, constitution to be introduced prior to the general election expected to be held at the end of 2002. Politicians had the last word, however, as the new constitution produced by Ghai and his team was not moved forward in parliament, and Moi quickly dissolved that body leading to the 2002 election. KANU was defeated by the NARC coalition and the hopes of many Kenyans for a new constitution under now president Mwai Kibaki seemed likely to be quickly fulfilled.

As is well known, this hope did not materialize during Kibaki’s first term, and by 2007 many Kenyans had reason to despair. Many factors have been put forward to explain this delay. Among these were continued division over a people-driven versus a politician-driven process, which in some ways reflected the elite or big men versus the larger number of small men dichotomy of the past. The influence of the neo-patrimonial politics remained a factor with wealthy individuals seeking to control the process, and the inability to adopt democratic norms proved a barrier to a new governing order. Also critical were divide and rule traditions (producing exclusion for many) as against the ideal that all Kenyans should have a stake in their government, no matter their ethnicity or place of residence (inclusion). The opposition mentality mentioned earlier also made compromise and agreement difficult.

These divisive factors played themselves out around several key constitutional issues. Those included the shape and powers of the executive branch, the nature of the franchise and of representative government, separation of powers, civil liberties, devolution, and financing a new constitutional order. These all presented bones of contention in the framing process as Kenyans struggled particularly to find consensus around the executive (a president as head of state and government versus an executive prime minister as head of government), legislature (unicameral or bicameral), system of representation, and devolution. The latter issue had become critical since majimbo came back into popular discourse and political contention in the 1990s and later.

Calls for federalism had accompanied the ethnic clashes that disrupted western Kenya and the coast during that decade. Furthermore, as time passed federalism was viewed by increasing numbers of Kenyans as a constitutional means to promote inclusion and as a means of diminishing the huge powers of the executive branch that had marked the presidencies of Jomo Kenyatta and Moi.

As most Kenyan adults in the 2020s know, the process of reaching a new constitutional order took many twists and turns between 2002 and 2010. The divisive constitutional issues noted earlier continued to burn brightly with the struggle for a people or politician-driven governing document at centre stage. 2004-05 witnessed parliament take control of the reform process through a select committee. Although politician/elite-driven, the process of constitution-making was now, and in the days and years to come, marked by deep division among the political elite and the public. Despite a lack of consensus among members of parliament (usually viewed as between those supporting Kibaki and those opposing his re-election), the select committee dropped the revised Ghai draft constitution presented to the attorney general in March 2004. Devolution was provided for in the new document as well as a unicameral parliament, a powerful presidency, and a non-executive prime minister. A divided political class and populace moved to the November 2005 referendum, the first in Kenyan history, which produced a decisive rejection of what was then termed the “Wako draft”. The constitution itself was not the only factor, and other issues such as the performance of the Kibaki administration were influential.

All amendments prior to the end of the century were achieved by parliamentary vote rather than by a national referendum.

In many ways, the referendum proved to be a rehearsal for the general election of December 2007. Despite political realignments, the demand for a new constitution was a central topic for discourse and many of the issues in constitutional dispute remained contentious while politicians and populace remained deeply divided in hostile parties. The most controversial election in Kenya’s history was the result, and the disputed outcome led to electoral violence, loss of lives, and the displacement of thousands of Kenyans from their places of residence in early 2008. As in the late colonial period described earlier, the inability of the Kenya political elite to compromise and reach consensus necessitated outside intervention, though this time not the British government. A political settlement ending the violence emerged with the assistance and pressure of the African Union and the United Nations, and a key element of this was the agreement of all political leaders and parties to work expeditiously to give Kenya a new constitution which would deal with the issues of the 2002-07 era as well as those dating from a much earlier period.

The new constitution was promulgated in August 2010 following the approval of 67 per cent of those voting in a referendum early that month, but the process was hardly easy or straightforward. Differences among the political elite, regarding the executive and devolution, again characterized the process. The latter took the form of 47 county governments, while the former, after intervention by parliamentarians, provided for an executive president and a deputy president, but no prime minister. In a major departure from the past, these leaders were to work with a cabinet consisting of non-members of parliament which was to be cast, as in the independence constitution, as bicameral. The referendum outcome indicated a significant level of public support and, led by Raila Odinga, most politicians supported approval in the referendum. Yet there were warning signs in this outcome that created Kenya’s second republic.

Among those signs were the fact that following the promulgation, much needed to be done to flesh out the details through legislation (as in the creation of a new supreme court). This proved to be a slow process and had not been completed by the time of the first general election (March 2013) under the new constitution. There were also misgivings that despite the democratic and progressive nature of the new constitution, its promise of inclusion and a better future for Kenyans might be weakened by tribalism, inexperience and incompetence at the level of devolved units of government, and continued corruption of the type that had plagued the previous governmental order under Moi and Kibaki. Political divisions remained as was illustrated in the outcome of the referendum. Eighty-eight per cent of Kalenjin voters rejected it as did 53 per cent of the Maasai. Moreover, only a slim majority voted in favour among the Kamba. Yet if press comments and political commentaries are any kind of a guide, the Kalenjin, following the lead of Deputy President William Ruto, now strongly support the 2010 constitution and see no need for change.

As time passed, federalism was viewed by increasing numbers of Kenyans as a constitutional means to promote inclusion and as a means of diminishing the huge powers of the executive branch.

The result over the past decade has been to spark yet another change-the-constitution movement despite the progressive nature of the 2010 constitution. On the whole, the factors driving the movement and leading to the handshake agreement of 2018 represented few new elements in Kenyan politics and constitutional discourse. The controversial general elections of 2013 and 2017, marked by heightened ethnic animosity and violence, were illustrative of a lack of inclusion, consensus, and a common feeling of nationhood among large segments of Kenya’s population. The first-past-the-post electoral system inherited from the British model, so it was argued, discouraged compromise, heightened ethnic hostility, and left some ethnic groups feeling marginalized and excluded from national decision-making, particularly through exclusion from the executive.

In the views of many Kenyans, moreover, corruption at both the level of the national and the county governments has not been tamed, but has grown more widespread. Unequal access to national resources and economic inequality generally continued to grow. For those Kenyans who feel that the cost of governance itself is a cause for concern, these economic factors also have emerged as critical considerations for constitutional reform. While the 2010 constitution demanded gender equity, on the other hand, it has clearly not been achieved and nor has affirmative action aimed at inclusion for disabled people and other underrepresented minority groups.

Right from the beginning, the self-government and independence constitutions were fatally flawed in that they were not completely implemented, and the same has been true of the 2010 constitution. The BBI reports discuss these and other issues and make recommendations for change, but the process remains elite-driven and far from radical.

Kenyan post-independence administrations have perpetuated the colonial policy of looking at Northern Kenya through the security lens, and have economically marginalised the region and its people. The 2010 Katiba (constitution) was to be the cure for the decades of marginalisation that the region has suffered. But the national political elite and the local elite are fervently subverting the gains of the Katiba — the national elite via revenue allocation and mischievous delays in providing infrastructure for socio-economic change and development, and the local elite via pilfering and stoking the fires of inter-community hostilities.

Between 2001 and 2010, pastoralists and their representatives and partners participated in the Kenya constitutional review process with unparalleled zeal and tenacity. In their arduous engagement with the constitutional reform processes, pastoralists had reminded themselves that democracy was not a spectator sport but a participatory process. They were convinced that they were on the cusp of change.

While presenting their familiar positions on critical issues that needed inclusion in the new constitution, pastoralists were against an imperial presidency and supported a parliamentary system; they called for affirmative measures in favour of minorities and other marginalised groups; they overwhelmingly supported a devolved structure of government that would bring government services and resources closer to the people and increased participation in decision-making on development priorities by the communities themselves.  Above all, they campaigned for a more equitable sharing of national resources.

The 2010 constitution

The promulgation of the 2010 Constitution was a watershed moment for communities in northern Kenya. The constitution provided a solid, legal and institutional framework for recognising and protecting the rights of minorities and marginalised groups. Northern Kenya was essentially reborn. The constitution engendered nothing short of a revolution of rising expectations. The devolved governance in the 2010 constitution was the most pivotal gain of all.  The right to self-determination, within the context of Kenya’s sovereignty, protected most of their rights and symbolically promised the end to marginalisation.

But ten years on, the debate is whether devolution and its attendant policy, legal and institutional frameworks, resources, and other infrastructure for socio-economic change —largely meant to have been driven by the national government — has matched the expectations of the pastoralist communities. Are current efforts moving towards “releasing our future potential” — in the manner of the curiously provocative slogan attached to the title of the Sessional Paper on National Policy for the Sustainable Development of Northern Kenya and Other Arid Lands — or elsewhere? That is the question the people of northern Kenya are asking.

Joseph Kalapata, a human rights activist from Isiolo, notes, “We are contending with the reality that we were naive to have expected so much. We now know that northern Kenya was not Saul of Tarsus who fell off the donkey and instantaneously became Paul”.

“There is nothing neither creative nor transformational going on. Every new project is a function of normal progression. Everyone tries to be a tenderpreneur. The common person is worse off,” says Enock Talam, a business consultant based in Kapenguria in West Pokot County.

While pundits on either side of the debate continue trading blows, both the county and national governments are praised or blamed for the perceived good or bad fortunes of northern Kenya since 2010. Whichever the case, the foremost responsibility and general mandate of both levels of government is to provide for citizens’ well-being through the equitable and accountable provision of services (Objectives of Devolution, Art. 174). This should be pursued within the inter-dependency, consultation and collaboration between both levels of government, particularly in those sectors in which they share responsibilities (the so-called concurrent functions).

Despite the many policies meant to bring out a favourable socio-economic change in the region, northern Kenya’s longitudinal biography stubbornly yields the historical portrait of an impoverished and underdeveloped region that is lacking in infrastructure and essential services and where governance and the rule of law are at their lowest. The population has suffered decades of economic, political and social marginalisation; disenfranchisement of rights, droughts, conflicts and decreasing resilience characterise the region (Truth Justice and Reconciliation Commission Report).

What has devolution fulfilled?

When assessing the governance and development situation in the region, especially in Marsabit County, scholar Ibrahim Harun (2019) avers that the devolved system of government has radically transformed the previously forgotten Northern Frontier District (NFD), that it has brought government closer to the people and provided democratic and development gains. Additionally, it has forged the inclusion of previously marginalised communities into the political system and that local solutions have been found for local problems. Harun cites Marsabit County government’s expansion of functions, such as agriculture, health services, transport, cultural activities, education, and public works and services.

Northern Kenya’s longitudinal biography stubbornly yields the historical portrait of an impoverished and underdeveloped region.

Ibrahim Harun’s findings reflect the changes that have taken place in most of the counties in northern Kenya — that the devolved system of governance is beginning to make a major difference in a region that presents formidable challenges when it comes to service delivery based on years of marginalisation, distance, population density and division. For optimum service delivery and socio-economic change, these factors still must be dealt with.

Education opportunities

The Constitution of Kenya states that every child has a right to free and compulsory basic education (Article 53 (1) (b)). Delivery of education services in pastoralist countries has improved since devolution was introduced. In their research, Rare and Ombui observe that historically, non-responsive national plans for education, non-existent school infrastructure in remote areas, the vastness of arid lands, cattle rustling, and the severe shortage of teachers — with teachers from other regions unwilling to move to northern Kenya due to insecurity — are some of the factors that have impeded access education. With the devolution of pre-primary and primary education, however, northern Kenya counties have expanded opportunities in education. These include positive developments in early childhood education in Marsabit.

Rare and Ombui report that the health sector has improved greatly under the devolution. Many of the counties have built new health centres, increased medical insurance cover for county workers, upgraded facilities in their referral hospitals with, for instance, operational renal units, and increased allocation to the health sector to about 30 per cent of the gross county revenue (in the case of Marsabit). There has been an increase in the number of health personnel from 330 in 2015 to 623 in 2019 (2018 to 2022 CIPD report) and Kenya Medical Training Colleges have been opened in the region.

Water provision

To achieve equitable development in Kenya, water provision must be a priority. This is because water availability impacts heavily on development of agriculture, health, industry, livestock production, and the pattern of settlement in the region. Northern Kenya counties, the national government and the private sector recognise that the northern region suffers from lack of surface water supply. It lacks lakes, permanent rivers, and streams. Rainfall is at best erratic. For instance, in West Pokot County, distances to water points average five kilometres during seasons of low rainfall. To improve water availability, more irrigation projects are being developed in various counties of northern Kenya. These include Malkadaka, Kinna-Rapsu, Bute-Gurar, Garfasa and Merti. Water harvesting techniques such as roof water harvesting are being promoted.

Infrastructure 

For producers from northern Kenya, access to national, regional and international markets is hampered by the vastness of the region, low population density and poor infrastructure (Social Economic Blue Print). It is for this reason that it was quite a relief that the 505km stretch between Isiolo, Marsabit and Moyale was completed and launched. The road has reduced travel time between Moyale on Kenya/Ethiopia border to Nairobi from 60 hours to 8 hours.  The Nairobi-Thika-Mwingi-Garissa-Liboi (the border town with Somalia), Mombasa-Malindi-Garsen-Hola-Garissa-Modogashe-Wajir-Elwak-Mandera, and Isiolo-Modogashe-Wajir-Elwak-Mandera corridors are under construction while the Kapenguria-Lokichoggio road is being rehabilitated.

The Masol Integrated Project in West Pokot County is one example of the attempts being made to improve the life of the marginalised pastoralist communities. The multi-pronged project that targets the most marginalised ward includes a school administration block; construction of an eight-classroom block and hostel for the primary school; construction of an equipped modern health centre; drilling of a solar-powered borehole and construction of the Srumben-Koposes road.

Pan-pastoralist planning

Through the Northern Rift Economic Bloc (NOREB) and the Frontier Counties Development Council (FCDC), counties have developed strategies to improve resource mobilisation, trade, and investment in their region. In a fresh approach to realising positive socio-economic change in their region, FCDC members (Mandera, Marsabit, Garissa, Isiolo, Tana River, Samburu, Baringo, West Pokot and Turkana) launched a Social Economic Blueprint for the Frontier Counties Development Council 2018-2030.

The blueprint adopts a new way of analysing the social-economic situation of the north but also what needs to be done to effect change. Policy instruments proposed by the blueprint are based on a geographical model. This geographical model emphasizes the need to approach the policy and intervention opportunities and challenges through the realities of northern Kenya’s low population density, costly distances, and deep divisions. For goals to be achieved, the blueprint highlights a combination of policy instruments with targeted interventions such as institutions and connective infrastructure.

Challenges 

As Paul Goldsmith noted, the adoption of the 2010 constitution set the stage for a new phase of transformational reorganisation, allowing Kenyans greater scope in defining their future. But the critical thinking required to guide the transition has lagged far behind. County governments need to upscale their capacity to promote inclusive governance, accountability, and transparency. Social accountability continues to be treated with suspicion by both national and county officers and leaders. Kenyan citizens are frustrated from exercising their sovereignty by holding their leaders accountable on budget processes, public procurement, amongst others.  As for effective public participation in planning meetings — which is far from encouraged — feedback on the communities’ proposals is rarely given.

Cynics perceive northern Kenya as a political theatre that reflects the national political environment, where politics is based on ethnic/clan bloc voting. Political contestation is primarily over group claims to and control over key resources, including land, employment, and state revenues. Elected governors are often viewed locally as partisan – as representatives of their clans or tribes, whose principal obligation is to advance the interests of their communal group, and not those of the county population as a whole. They note that fault lines are widening, pitting new elites on one hand and the general population on the other hand. When the scheming of the elites coincides with ethnic, or clan blocs — often presented as coalitions — this threatens the eruption of armed conflict. Goldsmith warns that, “Elite-driven opportunism has suffocated intellectual debate and multicultural vibrancy that once characterised the flow of ideas in this part of the world.”

County governments need to upscale their capacity to promote inclusive governance, accountability, and transparency.

Patronage-based politics and corruption have created new winners and losers at the local level, which has widened existing social cleavages and, and at worst, created new fault lines of conflict. Influential clan members, such as political leaders, often manipulate clan identities and existing cleavages in their pursuit of power and control of resources. The 2014 violence in Mandera County was attributed to competition between the majority Garre and minority Degodia communities. The Degodia accused the Garre of planning to create a “political monopoly in the county”. The local leadership was accused by the County Commissioner of fuelling the Garre-Degodia feud.

In the Social Economic Blueprint, governors agree that socio-economic and developmental change is curtailed ‘’where social, religious and political barriers, such as political conflicts, lack of cohesion and in security, hinder communities from benefiting from socio-economic integration in the FCDC region”. These barriers include ethnic and inter-clan conflicts, conflicts over resources, livestock theft and banditry, radicalisation of youth by Al-Shabab and other insurgent groups, and negative social and cultural practices, such as early and forced marriage of the girl child, Female Genital Mutilation (FGM) and low commercialisation of livestock farming.

On the ground

While the national government has recognised through many of its policy, legal and strategic structures that northern Kenya and other arid lands have suffered historical injustices and marginalisation, and proceeded to endorse affirmative measures for redress, it has yet to fulfil its promises.

The fact that many of the promises made have not been acted upon leads to suspicion that the government is not keen on revitalising northern Kenya. For instance, for a long time many governors across the country had almost believed that the constitution and associated legislations were not sufficient to “prevent the recentralisation of power by the national government”.

Persistent delays in the disbursement of funds to the counties have often led to the national government being accused of frustrating the efforts of the county administrations and the people. As the former Council of Governors chairman Wycliffe Oparanya observed, delaying the disbursement of funds to pay for salaries, health, agricultural extension and development salaries, health, agricultural extension services, and development affects the provision of county services to the public.

The Commission on Revenue Allocation (CRA) classifies northern Kenya counties as “marginalised” areas which should therefore be beneficiaries of the Equalization Fund. The Equalization Fund was established under Article 204 of the Constitution and was aimed at bringing the delivery of services in the marginalised counties to the level enjoyed by the rest of the country by financing such services as roads, water, electricity, and health. Since 2013, marginalised counties have not received monies from the Equalization Fund through the national treasury. In March this year, Business Daily quoted the National Treasury Cabinet Secretary Ukur Yatani saying that a multi-agency committee had handed in the Draft Public Finance Management (Equalization Fund) Regulations to the Cabinet for approval. Once approved by the Cabinet, and certified by the Attorney General, the draft regulations were to be submitted to Parliament for adoption.

Patronage-based politics and corruption have created new winners and losers at the local level, which has widened existing social cleavages.

The Kenya Vision 2030, for instance, proposed the development of resort cities in the FCDC region which ten years later have not been started. The resort cities have yet to take off. Such failures to implement flagship projects do not bode well for the development aspirations of marginalised regions.

Pastoralist communities are still being ravaged by drought emergencies yet the national government which has the responsibility to coordinate and marshal resources towards a durable solution to this challenge has been unable to do so.

The narrative being bandied around that, “they got devolution and it’s all up to them’’, while partially valid — for northern Kenya people must chart the course of their own future — one must be aware of the mischief of reductionism. Northern Kenya’s governance and socio-economic performance is as much its citizens’ business as it is that of all other Kenyans. One cannot fail to grasp the enormity of the marginalisation that the region has gone through. Secondly, this attitude towards northern Kenya ignores how the enduring, complex and structural relations between the centre and the periphery impact performance. In any case, after attaining self-governance in 1963, like other developing countries, Kenya is still struggling with the realities of the embedded linkages between the centres of the West and the peripheries of the developing world, some arguably designed to outlast imperialism. 

The devolved system of governance is turning around the fortunes of northern Kenya counties, albeit at a slower pace than had been expected. While the national government should keep its promises for northern Kenya, county governments should preside over institutions that are inclusive, accountable, and transparent.

These counties should avoid situations that might lead to conflict and insecurity. “Unless we watch out, each day could turn out to be an anniversary of a funeral”, says Enock Ripko, a business and Peacekeeping consultant from Kapenguria in West Pokot.