The dispute between Embu and Mombasa counties over the sale and consumption of ‘muguka’ has highlighted growing conflict among devolved units over resources, bringing to light the challenges they face in balancing their own interests with national unity.
On Monday before President William Ruto faulted the ‘muguka’ ban by three coastal counties — Mombasa, Kilifi and Taita-Taveta — as farmers and traders held protests in Ena, Embu County, more than 550 kilometres from Mombasa which was the first to announce the ban.
Kilifi and Taita-Taveta also joined the fray, fighting the cash crop by linking it to drug abuse.
Across the country, counties are embroiled in fights over resources and boundaries with some of the disagreements turning bloody.
Mombasa Governor Abdulswamad Nassir ordered the closure of all ‘muguka’ outlets and directed county officials to enforce the ban with immediate effect, citing negative health effects on the youth.
However, Embu Governor Cecily Mbarire has dismissed the ban, saying ‘muguka’ is not a drug.
“The ‘muguka’ value chain is estimated to contribute approximately Sh22 billion annually to Embu County’s economy. It also contributes close to Sh1 million daily to the Mombasa County economy in transport levies. ‘Muguka’ farmers have invested heavily in the crop and stand to revenue and a source of their livelihoods,” she said.
Former Transition Authority chairperson Kinuthia wa Mwangi has attributed the counties’ fight over resources to the need to increase their own revenue kitties.
“The Executive Order was a total abuse of constitutional processes as it is not based on any gazetted law as was the case by Mombasa County. It was fiat and discretionary in nature given that it contradicted a national policy, had no standing in law and can be challenged in court,” Mr Mwangi told Nation.Africa.
He explained that there are more than 16 boundary disputes between various counties that are all centred on resources.
Last year, Mombasa County’s plan to tax cargo at the Port of Mombasa ran into legal headwinds after Attorney-General Justin Muturi termed it illegal and unconstitutional.
In an advisory, Mr Muturi said the county had no mandate to impose a levy on goods imported into the country, arguing that the move could undermine national economic policies.
The AG said although the law grants the two levels of government power to impose taxes and charges, it also clearly spells out which distinct areas the two should work within.
The former TA chairperson cited section 189 (a) of the Constitution which states, “The government at either level shall perform its functions, and exercise its powers, in a manner that respects the functional and institutional integrity of government at the other level and respects the constitutional status and institutions of government at the other level and, in the case of county government, within the county level.
Section 3 states; “In any dispute between governments, the governments shall make every reasonable effort to settle the dispute, including by means of procedures provided under national legislation.”
“There is a serious danger of derailing devolution from the way it was intended to work should the two levels collide in their functions,” Mr Mwangi said.
Recently, the Environment and Land Court confirmed conservatory orders allowing the County Government of Taita-Taveta to be the sole authority issuing business permits and levying county taxes in the contested Mackinnon Road and Mtito Andei towns.
The towns are contested by Kwale, Makueni and Taita-Taveta counties.
Justice Lucas Naikuni further directed that the Taita-Taveta County Government deposits all revenues it will collect into an interest-earning bank account opened jointly with Kwale and Makueni counties.
The judge also issued an order prohibiting Kwale and Makueni counties and their agents from collecting revenue in any way in Mackinnon and Mtito Andei towns, where their predecessors did not collect revenues before the establishment of county governments.
“I have already set out that the public interests will not be served if this court declines to grant conservatory orders sought, I will exercise this discretion judiciously and grant the petitioner the orders as prayed,” ruled Justice Naikuni.
The orders were issued pending the hearing and determination of a petition filed by Senator Okiya Omtatah relating to boundary disputes between Taita-Taveta, Kwale and Makueni counties.
Mr Omtatah seeks to compel Parliament (National Assembly and Senate) to appoint an independent commission to resolve the simmering boundary disputes between the three counties.
According to the case documents, the disputes have resulted in traders who used to pay taxes to the predecessor of Taita-Taveta County, before counties were established, being forced to pay taxes twice to two different counties. Mr Omtatah also wants the Executive arm of government to survey and erect visible beacons to clearly demarcate the boundaries of all counties with preference being given to Taita-Taveta, Kwale and Makueni counties.
He is seeking a declaration that forcing residents of Mtito Andei and Mackinnon Road towns to pay double taxes is a gross violation of the traders’ rights.
Meru and Isiolo have also been embroiled in a boundary tussle since 2013, which is yet to be resolved.
Sondu town, on the border of Kisumu and Kericho counties, has been contested by both devolved units leading to ugly altercations.
The Nandi-Muhoroni border has also been a flashpoint over the years between Nandi and Kisumu counties, although there has been relative peace.
