Chapter 4 of the Constitution, on the Bill of Rights, is about securing individual citizen and taxpayer rights and fundamental freedoms but not community, county or community “rights and fundamental freedoms”.
The State and its agencies exist to secure and guarantee these inalienable rights for the individual to realise his or her highest and fullest possible potential. But the debate in the Senate over the allocation of funds to counties has been distorted and shifted to securing perceived tribal, community and regional entitlements.
All have a right to be treated and served equitably by the State in resource, opportunity sharing and service delivery. That is the Constitution, the law and universal pattern under the Universal Declaration of Human Rights (1948).
However, for purely political expediency and raw tribal sentiments, a section of politicians, lawyers and commentators have sought to shift debate about revenue sharing from an equity to an equality oriented conversation.
Some seek to weaponise the debate to project themselves champions of tribal interests, regardless of legal or moral credence of their arguments to retain the current revenue sharing formula, in use over the past decade and which is heavily tilted towards equality than equity and disadvantages the densely populated counties.
Equity tends towards fairness while equality implies equal parts, regardless of unfairness or injustice committed in the process. Equality means a family of 10 recieves a loaf of equal slices of bread as that of three, either out of entitlement, or other arguments, in disregard of the inherent injustice.
A new formula crafted by the Commission for Revenue Allocation (CRA) seeks to correct the equity anomaly by raising population consideration (service delivery) from 45 per cent to 65 per cent. But opposition to the new formula has been fierce from elected leadership from so-called “marginalised” regions, counties or communities. Their battle cry and rallying call has been emotionally charged accusations of “developed regions and communities” snatching resources from “historically marginalised” ones.
The mischief, dishonesty and double speak in these charges have been loud and vehement in ochestration regardless of party affiliation, ‘Handshake’ cooperation and coalitions. The common denominator, ironically, is that those saying they are entitled to an equal share of sharable revenues are equally vehement arguing for justice in correcting, addressing and alleviating of ‘historical injustices’ inheherent in low economic endowments.
Correcting historical injustices on economic marginalisation is itself an equity principle, not an equality one, in that it is not based on a entitlement precondition of equal or proportionate tax revenue generation before accessing the Equalisation Fund allocations. For elected leaders, legal experts and lobbies to argue that densely populated regions and counties as Nairobi City County did not deserve higher revenue allocations on account of higher service delivery demands is itself a contradiction in seeking to deny Nairobi county the same equity rights they seek for themselves.
The emotional brigade pushing the equality argument insists everyone gets a loaf of equal number of slices regardless of the size of the family should pause to think what message they are sending to the rest of the country. For 10 years, highly populated counties endured an unequal revenue sharing formula that funnelled billions of shillings into so-called marginalised counties at the expense of everyone else.
Nothing stops the National Assembly from recommending to the President to resurrect the Commission for Implementation of the Constitution (CIOC) to draft a raft of bills left undone by the time its five-year tenure lapsed. That would save the country much agony and grief around many a legal and constitutional conundrum.
