Public Service Transformation Through Constitution Review

The Kenyan Experience

Margaret Kobia, PhD is the Chairperson of the Public Service Commission (PSC) of Kenya. She is also an Associate Professor of Management. Prof. Kobia holds a PhD in Human Resource Education from University of Illinois, MED from Kenyatta University and B.ED. from University of Nairobi. Prof. Kobia has taught Management, Entrepreneurship and Research Methods at university level. Her research interests include Public Sector Reforms and Performance Management Training. Prof. Kobia is the editor of the African Journal of Public Administration and Management. Her Head of State Commendations and Awards include: Order of Grand Warrior (OGW), First Class Order of Chief of the Burning Spear (CBS) and Commonwealth Gordon Draper Award 2010. Before joining the Public Service Commission, she was the Director General, Kenya School of Government (2006-2013). Prof. Kobia also sits on several Public Sector Management Boards.

INTRODUCTION
 
Defining Public Service Transformation
Public service transformation, also referred to as New Public Management (NPM), can be generally defined as a transformation of government services towards more market-based and private sector models of management (Hood 1991; Berg 2006). The main goal of the public service transformation is to transfer private sector management practices and the introduction of market forces to the establishment of democratic principles within the state machinery in its broadest sense (Hughes, 1998:2). It is hoped that countries that undergo public transformation improve their service delivery mechanisms to be efficient and effective as they pursue the ideal of a better future for the nation state. Kettl (1997; 2005) contends that most countries underscore the NPM principles in their public transformation agenda. Countries, however, differ in the modality of implementation of public service transformation and the process has varied from country to country. While most of the efforts have been on enhancing capacity through establishing new policy documents, the ultimate process has been the review of country constitutions so as to create new frameworks for the operation of the public service. In this paper, we focus on this new trend; legislative reform through constitutional review as a tool for transformation in the public service.
 
Constitution Review as a Tool for Public Service Transformation
The constitution is the supreme law in a country that guides how sovereign power is utilized for the greater common good of the people. As such, the constitution establishes the form of governance a country wishes to apply. Of importance is that the constitution provides for how power over public affairs will be accessed and applied in decision making, implementation and review. A key actor in the application of sovereign power as expressed in the provision of public goods and services is the institution of public service. Its performance has a direct impact on the livelihoods of the people. In fact, the public service is always a reflection of the government of the day. It is for this reason that countries across the world have made considerable efforts and investments to improve the workings of their public services.
 
The constitution provides the parameters within which the public service will operate and in particular establishes the core principles to be applied in all operations of government. Constitution reviews, in a number of countries over the past three decades, have thus focused on creating these new frameworks. This is especially where there has been need to ensure that public service operates in a way that respects and upholds the rights of all persons and also focuses on marginalized and minorities that have hitherto not benefited from the full access of public goods and services. This has been necessitated by the rights-based approach to public service and the growing demand for equality by all persons.
 
PUBLIC TRANSFORMATION THROUGH CONSTITUTION REVIEW: A CASE STUDY ON KENYA 

Why Kenya Reviewed its Constitution
For over 46 years since independence, Kenya pursued a highly centralized governance system that saw power consolidated in the executive arm of the government. The Constitution of Kenya (CoK) was promulgated on 27th August 2010 with the aim of eradicating the ills that had been associated with a centralised government. Centralized power in Kenya had led to the capture of the state by a few political elites. The move to decentralization in the Constitution thus aimed to re-introduce democratization of public service delivery through greater public involvement. This became a major driving force for the establishment of a devolved system of government in Kenya. The devolution of power and authority was meant to facilitate the decentralization of the service provision frontier to within close proximity to the citizens and create channels of greater accountability in the utilization of public resources. Simultaneously, devolution also aimed at locating the decision making process nearer to the point of service delivery. The Public Service Transformation Agenda in Kenya’s Constitution.

To establish the public service transformation agenda as a core aspect of constitutional review, it is imperative to briefly review the provisions of the Constitution of Kenya as promulgated in 2010. The Constitution places the sovereign power on the people of Kenya who delegate the same to government at the national and county levels (Art.1). This power is to be applied in a way that ensures that persons in all parts of the Republic have equal access to public goods and services. Every actor within the government is required to uphold certain national values and principles of governance (Art. 10). These are “(a) patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people; human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized; good governance, integrity, transparency and accountability; and (d) sustainable development” (Republic of Kenya, 2010). 

The Bill of Rights in Chapter 4 of the constitution outlines the rights of citizens and mandates the government to ensure those rights are actualized. The bill of rights provides in the broadest yet specific detail what the public goods and services are. It is “an integral part  of Kenya’s democratic state and is the framework for social, economic and cultural policies”. The state and every state organ have “a fundamental duty to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights” (Art. 21.1). Having given mandate to the state, the courts, on the other hand, are given the responsibility to enforce the bill of rights. The bill of rights, particularly in Articles 26-57, provides the specific rights and fundamental freedoms. This then creates the deliverables expected from government and hence the public service.

It is on this pedestal that the rest of the constitution provides how the state shall deliver its services. Chapter five provides for how to manage the key resource of land and environment. Chapter six provides for leadership and integrity in the management of the state. Chapter seven provides for representation of the people while chapter eight creates the legislature. These two chapters, seven and eight, provide for the voice of the people to be incorporated in all decisions of the state. Chapter Nine provides for the executive which is the institution with the mandate to implement public policies. Specifically, it is under this arm of government that the public service operates. Chapter ten provides for the Judiciary, which is given the power to arbitrate where disputes arise as well as interpreting the law. Chapter eleven creates institutions of devolved government. It outlines the objects, principles and structure of the county governments. Chapter twelve provides for public finance management as a core facilitator of public service.
 
Chapter thirteen is specifically on public service. It is worth noting that the public service is placed after all other frameworks have been established. This ensures that their deliverables are clear and their operating framework established. It is in this chapter where the public service transformation agenda is articulated. This Chapter sets the principles of the public service (Art. 232); establishes the Public Service Commission (Art. 233- 234); provides for county public service (Art. 235); protection of public officers (Art. 236); and establishment of the Teachers Service Commission (Art. 237). While these provisions may appear obvious, they are a critical tenet of public service transformation. To start with, while building on the provision of national values and principles of governance (Art. 10), the Constitution provides for the values and principles of Public Service. These create the higher ground that public servants are required to walk in carrying out the functions of their offices. The values and principles shown in Box 1 apply to state organs at National and County Levels and create a most fundamental shift in operations of the public service in Kenya.

Box 1: Values and Principles of Kenya’s Public Service 
 
The implementation of the Constitution of Kenya 2010 has meant that greater focus is placed on the public service in its broadest sense including the police service. The next sections focus on the successes from what has been done towards the implementation of the Constitution and the implications for public service.
 
Successes
After one year of devolution in Kenya, the process can be generally deemed as a success despite the many challenges. Overall, there has been increased citizen participation in the policy-making processes, equitable revenue share within all 47 County governments leading to expanded service to the whole of Kenya. Some geographical regions such as Turkana County, in the past regarded as “forgotten territories”; have for the first time received developmental budgets for their communities. Other notable promises of devolution have been greater involvement of women, youth and persons with disabilities in the governance system. The CoK 2010 establishes a 2/3 gender rule for all elected offices which requires that government ensures no gender can be less than 1/3 in representation. Other notable successes include:
 
a) Legislation
Soon after the Constitution was promulgated, several pieces of legislation were passed in the National Assembly to give effect the legal framework for devolution. Key among these were legislations such as the County Governments Act 2012, the Commission on Revenue Allocation Act 2011, the Intergovernmental Relations Act 2012 and the Transition to Devolved Government Act 2012.
 
b) Establishment of the offices of the public service
Public Service Commission: Unlike in the past where the Public Service Commission (PSC) was based on an Act of Parliament, it is now established firmly in the Constitution with its mandates and composition clearly stated. This ensures that it can operate independently and hence objectivity in its work.
 
County Public Service Boards: The County Public Service Boards have a mandate similar to that of the Public Service Commission, but are limited to the respective Counties. To achieve the objects of devolution, the Counties, through their Boards, must adopt strategic human resource initiatives. One of the objects of devolution is to promote the democratic and accountable exercise of power.
 
c) Vetting of Public Servants
Judges and Magistrates Vetting Board: The objective of the board is to vet the suitability of all the Judges and Magistrates who were in office on the effective date of the new constitution of Kenya to continue to serve. Specifically, the suitability is assessed in
accordance with the values and principles of public service set out in Articles 10 and 159 of the Constitution.
 
Public Appointments Act: This is an Act of Parliament meant to provide for procedures for parliamentary approval of constitutional and statutory. The Act offers the criteria for vetting of nominees for appointment into public office and standardizes the vetting procedure. Vetting of senior public officials in the public service is a totally new idea introduced by the new Constitution and has divided opinion in the public domain (Ndemo, 2014).
 
d) Ministries Restructuring and New Government Structures
The 2010 Constitution has redesigned Kenya’s governance structures radically with clearguidelines especially on the cabinet and its size through Article 152 (1) (d). Previously, the determination of the size of the cabinet and who is appointed to it were the prerogative of the president who could appoint any number of cabinet ministers. Under the previously constitution, cabinet members had to be either an elected or nominated MP, thus allowing the president perks and powers of patronage, and seriously eroded the principle of checks and balances between the organs of government. Under the previous coalition government in Kenya, for example, almost half the members of the legislative arm were part of the executive, either as ministers or assistant ministers and this bloated cabinet was better known for its wastefulness, turf wars and duplication of roles and responsibilities than for service delivery. This has now changed under the 2010 Constitution. Firstly, the title of cabinet members has been changed from that of “minister” to cabinet secretary, while the positions of assistant ministers have been abolished entirely. Secondly, under Article 152 (3), no sitting member of the legislature will be allowed to serve as a cabinet secretary, to ensure that parliament’s oversight role over the executive is not compromised. Thirdly, the size of the cabinet has been restricted to between 14 and 22 persons with a requirement that the president’s cabinet nominees be subjected to parliamentary approval. In addition, parliamentary oversight over the executive has been enhanced by granting MPs the authority to demand the dismissal of a non-performing cabinet secretary. Through these actions, the 2010 Constitution envisioned service delivery and efficiency in a leaner government, which has had direct consequences on government structures (Waiguru, 2013).
 
Emerging Challenges in the Implementation of the 2010 Constitution
The implementation process of the 2010 constitution is facing numerous challenges with issues emerging almost on a daily basis. However, most of the challenges Kenya is facing cannot not be deemed as totally unexpected particularly since Kenya’s devolution agenda has been rapid and has been termed as “big bang” devolution.
 
a) Rapid Transfer of Services 
The new government of Kenya elected in March 2013 committed itself to rapid transfer of devolved functions to the counties. This position, marked by an allocation of funding to counties, signalled a hastened pace of devolution compared to the earlier envisaged phased transfer of functions over a three-year period which was contingent on whether countieswere deemed to have the necessary capacity to take charge of a function.
 
b) Coordination and Inter-governmental Relations
One great challenge has been the relationship between theNational and County governments. Despite the national government transferring all functions to the county governments, there continues to be antagonism between the national and county governments with the county governments accusing the national government of frustrating county governments. Without an effective focal point, coordination between the three arms of government has been another challenge.
 
c) Conservative Public Mind-set
Owing to longstanding governance structures and public service practices propped by the previous Constitution, many individuals, both in government and amongst the citizenry, continue to hold a conservative mind-set towards reform. Some administrative regulations are still undergoing review and their existence consigns the respective implementers to an old order of doing things. It is anticipated that an objective and intensive capacity development for public officers on the Constitution will help infuse the right attitude towards the reforms.
 
d) Integrity
The public service in Kenya has been characterized by institutionalised corruption, low productivity inefficiency, lack of transparency and accountability. A culture of low accountability especially in the misappropriation of public funds has been endemic in Kenya’s public service. Unfortunately, early signs from the County governments show that this culture has now been decentralized.
 
e) Adverse Political Competition
Certain political utterances and actions have presented challenges to the implementation process.It may be presented in the form of disrespect for, or lack of recognition of constitutional institutions, such as Courts or independent Commissions. This probably arises from focus by politicians on short-term political gains rather than ignorance of the law.
 
f) Revenue Management
Another challenge has been the new counties and especially on management of devolved resources in raising revenue and use of allocated resources. County governments are legally mandated to provide services and the questions now arising are on the cost of providing these services. For example, Kitonga (2014) points out that the wage bill debate has conveniently been linked with the Constitution in a way to suggest that the ‘cost burden’ associated with county governments is the source of Kenya’s economic problems without giving the full implementation of devolution an opportunity. Similarly, Gaitho (2014) contends that the nature and packaging of the wage bill debate might pose a big challenge to the implementation of the Constitution and especially on devolution, which can be considered the centrepiece of the [new] constitution.
 
g) Knowledge and Understanding of the Constitution
A majority of Kenyans display insufficient knowledge of the Constitution. Provisions of the Constitution of Kenya are not well understood and Kenyans are yet to internalize the Constitution. These calls for targeted civic education to ensure that public officers, the private sector and other non-state actors and individuals are well educated on the Constitution and their respective roles in uphold its supremacy.
 
h) Increase in Litigation
The success of devolution in Kenya today can also be deemed to have provoked new legal challenges. Kenya has seen increased participation from citizen in matters of policymaking and governance. However, in as much as Kenyans have become participatory in the processes, a steady rise in litigation by civil societies against government has seen some slowdown in their service to the public owing to pending court cases.
 
Lessons Learned
The Constitution was meant to herald a re-orientation and restructuring of the Kenyan state and society and offer a departure on how things work especially in the public service. This is especially what devolution was all about; to promote social and economic development and better service delivery throughout Kenya. A clear positive shift has occurred in the public service as a direct consequence of the Constitution but more can be done and there are challenges to be overcome as yet which is what the country’s leadership and the people should strive toward. 
  1. Phased Devolution: Perhaps the biggest lesson of all and especially for other African countries that are devolving is to have a time phase devolutionprogram that lays phased out decentralizing framework for services. This would ensure that decentralized units prepare themselves adequately by developing the necessary institutions and legal framework that would support decentralized services.
  2. Staff Competency and Motivation: Another key issue that continues to plague decentralized units is the lack of competent motivatedstaff. Despite massive capacity building efforts by the Kenya School of Government and other institutions, counties are plagued with staff that cannot effectively roll out the devolution agenda. A coordinated capacity building effort is crucial for the success of devolution.
  3. Intergovernmental Engagement: Continuous dialogue between national and county government is critical and harmonization of operations between the threelevels of government is crucial.
  4. Vision and Framework for Public Service: There is need for Kenya to develop and adopt a long-term vision to anchor the reforms in public service. This will provide Kenya the opportunity to plan and prioritize the activities for the transformation agenda. Subsequently, there is also need for top-level political leadership to provide political and social capital goodwill in the devolution process.
  5. Capacity Building: Capacity building in the broader sense of human and institutional capacity for the key drivers of devolution is pertinent. County staff have to be capacitated adequately in matters of devolution.   
  6. Citizen Engagement: Citizen engagement and participation is also critical to enable citizens to own the transformation agenda. Peoples’ needs must be responded to and the public must be encouraged toparticipate in policy making.
 
BUILDING A FRAMEWORK FOR PUBLIC SERVICE ENGAGEMENT
 
After one year of devolution, Kenya has indeed achieved many successes within its first year, but the journey to transformation is still in the process. From the first year, it can be noted that great successes such as new regulatory frameworks are clearly evident. However, rapid transfer of functions and allocations of resources are not the hallmark descriptors of transformed public service delivery. In fact, none of these critical milestones can guarantee transformation of the public service. This leads to questions on what Kenya need to do as she embarks on the second year of devolution and whether there any innovations, new technologies or best practices that the country can learn from to ensure the constitutional implementation process realizes its public service transformation agenda.

Lessons from South Africa
South Africa underwent Constitution review in 1996 to undo the many ills of the apartheid policy, which openly entrenched discrimination in public service delivery. Government programs perpetuated a strict racial hierarchy with the greatest allocations going to the White minority (Rakate, 2006). After the dissolution of the apartheid government South Africa had to revise its public service delivery legal framework. The first of these steps was through the “White Paper of 1995 on the Transformation of the Public Service”. This was meant to serve as a guide for in the introduction and Implementation of new policies and legislation aimed at transforming the South African Public Service and advised the Constitution of 1996 which provided for a new public service delivery mechanism. The Constitution (Act 108 of 1996) states that the Public Administration must be governed by the democratic values and principles enshrined in the constitution. These values include human dignity, the achievement of equality, the advancement of human rights and freedom and non-racialism. Section 1 of the South African Constitution further stipulates that the most important public service principles that inform the public service are: service must be provided impartially, fairly equitably and without bias, people’s needs must be responded to and the public must be encouraged to participate in policy making. Transparency must be fostered by providing the public with timely accessible and accurate information and that Public Administration must be development oriented (South Africa Department of Public Service and Administration, 2007).
 
Like in Kenya’s case, the Constitution of South Africa laid out a public service transformation agenda. The 1996 constitution was later followed by the White Paper of 1997 on Transforming Public Service Delivery, “Batho Pele”, which provided a policy framework and guidelines within which the public service was expected to operate (Rakate, 2006). The Batho Pele involved creating a framework for public service delivery that would ensure that citizens are treated like customers, enabled citizens to hold public servants accountable for service delivered, shift from bureaucratic systems, processes and attitudes towards more market oriented systems that improve efficiency in productivity to establish a public service that is responsive to the needs of citizens. The Batho Pele laid out the following principles of consultation, service standards, access, information, openness and transparency, redress and value for money and all NPM principles (Rakate, 2006; South Africa Department of Public Service and Administration, 2007).
 
Though the dynamics that led to the review of both Constitutions are different, the constitution review has been used as a tool to improve service delivery and to encompass all citizens in a fair and efficient manner1. For both countries, there is an aim of establishing a new “public servant” ideology. South Africa’s public service has been hailed as a success story for Africa over the past decade and is deemed as a classic example of how NPM principles can be utilized to improve public service delivery (Economic Commission for Africa, 2010; Cameroon, 2009).  Looking at South Africa’s case, we suggest an NMP framework that will help define the role of the public servant in Kenya.

Framework for Efficient and Effective Public Service Delivery in Kenya
The 2010 constitution is anchored on the view that efficient and effective public service delivery is not a privilege in a democratic environment. In this aspect the constitution un-doubtfully contains principles and elements that will have both direct and indirect impacts on public sector performance, reform, and transformation. These principles laid out in the constitution are also consistent with the NPM principles of Productivity; Marketization; Service orientation; Decentralization; Policy and Accountability (Kettl 2005). Countries such as South Africa that have adopted NPM principles have shown that NPM ideas increase efficiency and effectiveness through marketization of public services. To this end, this paper proposes a framework for efficient and effective public service in Kenya and further proposes that new role of the public servant; to ensure efficient and effective public service delivery in devolved government (See Diagram 1).

Diagram 1: Framework for Efficient and Effective Public Service Delivery
The new role for the Kenyan Public servant in the new dispensation of government can be basically defined as efficient, effective responsive public service. To ensure this is possible all public service will have to be in response to the needs of Kenyans through policy processes that have involved participatory processes with the citizens. The framework that follows lays out six principles that will ensure success to the new role of Kenya’s public servant.

1. Productivity
Productivity in public service has been tied closely to instituting performance measures that not only assess the bureaucrats but serve as a basis for motivation. Performance management has been embraced within the Kenyan public service and if counties are to succeed, they have to institute performance measurement strategies. Performance management strategies include results-based management (RBM) and balance scorecard. All these performance management approaches aim at attaining operational effectiveness in productivity, speed and quality. This demands that County public service boards develop a modern performance appraisal system that will shape their service and work activities for the achievement of pre-determined that are both cost-effective and responsive to customer needs.
 
2. Marketization
Marketization or privatization refers to the idea that government can use market-style incentives to root out the pathologies of government bureaucracy through privatization or through public private partnerships for service delivery (Kettle, 2005). Privatization includes joint ventures between government agencies/ministries and private entities; Sale of some government services or functions, such as water supply or telecommunications, to the private sector; management contracts for the private sector to manage specific government functions or services such as postal services. Privatization can contribute to better service delivery since private companies adopt market based management styles thus reduced government bureaucracy.
 
3. Service Orientation
The Kenya Public Service will need to re-orient itself to whereby Kenyans are treated as valued customers rather than as charges. Putting people first signifies making government officials “less remote and more responsive” and also “less bureaucratic and more entrepreneurial”, or results- oriented (Caillods, 2000). Kenya has instituted the Huduma Centres similar to the Thusong Centers of South Africa. To ensure that all citizens are receiving responsive service delivery, it is imperative that Huduma Centres are established within all the counties at the ward level.
 
4. Decentralization
The primary objectives of decentralization therefore include, but are not limited to, overcoming the indifference of government bureaucrats to satisfying the needs of the public; improving the responsiveness of governments to public concerns; and increasing the quality of services provided. Devolution in Kenya is a mechanism that should enable Kenyans to participate in the process of governance, as well as a framework for allowing the community’s interests to be represented in government decision-making structures. This calls for a public servant who is responsive to this reality of inclusion of citizens.
 
5. Policy
Both the county and national governments must instil pro-active measures to develop enabling policy frameworks to promote  new systems and administrative structures that will promote public service delivery in Kenya. It is essential that Kenya develops a policy framework to guide the implementation of devolution such as the Batho Pele framework that South Africa instituted in 1997 a year after their constitution review.
 
6. Accountability
In Chapter 6 of the 2010 constitution on “Leadership and Integrity”, it sets out a framework of leadership and integrity as it pertains to officers of the State. Building up a civil service with integrity means building a culture of probity and honesty which will not only ensure the clean and efficient operations of the government but also forms the basis for maintaining public trust and support to the government. The county governments are placed in a good position to start with a good culture of honesty. This should be achieved through the reinforcement of the core public values.
 
Accountability in government is further instilled through performance management systems. Performance management increases accountability because clear and explicit managerial targets, combined with managerial autonomy and incentives to perform, make it easier to establish the basis for managerial accountability and to achieve outputs (Hill & Gillespie, 1996). South Africa, for example, entrenched performance management with great success. It is hailed to have improved public service accountability because of explicit performance targets.
 
7. Capacity Building
Even though NPM principles do not mention capacity building as one of the core characteristics, capacity building will be crucial for the success of this model. It is for this reason that we underscore capacity building as a key factor in the proposed framework. In fact, it is upon the bedrock of capacity building that the above model can be realized. Indeed, for efficient and effective public service to occur the public service will have to be capacitated with well- qualified staff. Capacity building, as we know it traditionally, will have to go beyond the traditional classroom scenario. Counties need assistance with real-time issues and it is time capacity building measures integrated other modalities such as mentoring and on the job training. It is thus necessary for counties to undertake a training needs assessment to determine the existing performance gaps in terms of the skills requirements and through the Kenya school of Government and other Government training institutions address train civil servants to cope with the increased job demands and improve operational flexibility by extending the range of skills through multi- skilling.
 
CONCLUSION
 
High performance and quality service is the ultimate aim of the public service. Countries like South Africa are living testimonies that public service can be transformed to efficient and effective systems. This however, cannot be achieved without a conscious policy and program to instil appropriate attitudes and ethical standards. The new role of the Public service should focus on the responsibility of the public servant to serve and empower citizens using market- based methods that improve efficiency. The role of the public servant has to be reviewed to one that builds a new image which will command trust and respect.
 
It is important to consolidate the gains made so far in the first year of Kenya’s devolution while focusing on integrating a new model that focuses on modern NPM practices as outlined in this paper. The role of a public servant as mentioned in this paper is in sharp contrast to the familiar way of doing business in Kenya’s public offices. However, these NPM have been successfully practiced in  other African countries with much success. There is no doubt that with proper capacity building, the role of the Kenyan public servant can become clear to individual public officers and thus bring lasting change within Kenya’s public service. It is therefore crucial that as Kenya moves to the second year of devolution, there should be a deliberate effort to ensure that all public service employees understand the public service reform agenda for the success of public service delivery in the new government dispensation.
FOOTNOTES  

1 Kenya’s constitution review was in response to the 2007/2008 post-election violence. In the case of South Africa, the constitution was reviewed to undo years of colonial apartheid rule.
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