Beyond Legal Jargon: How Nairobi Should be Governed
Nairobi has recently been thrown into confusion. Governor Mike Sonko, under corruption charges agreed to hand over the County’s functions to the national government, basically surrendering responsibility to the national executive arm.
The national government took over these functions on March 17. On 26th March, the Head of Public Service Joseph Kinyua formally deployed 32 officers to serve in the Nairobi Metropolitan Service, an authority meant to run the city. But that decision to move the county to the national level, even as it shocked the public, it was challenged in court.
The High Court in Nairobi consolidated three petitions filed by civic activist Okiya Omutatah, civil society groups Tisa-Kenya and Katiba Institute.
The case is still pending in court, awaiting a bench to hear and determine it. Omutatah had argued the decision to transfer power was unprecedented and needed a legal clarification. But that is not the only undercurrent punctuating the controversial relocation of functions. Nairobi is the capital of Kenya but it is also one of the 47 counties created in a devolved system under the 2010 constitution.
When the Governor signed off the relocation deed to hand over functions in February date, the furor created was whether the public or their representatives had been consulted as per the law.
Tisa-Kenya put out a random opinion poll on their Twitter account asking if anyone thought “it would be important for Nairobi residents to be involved in the process of transfer of Nairobi City County functions to the National Government.”
The poll showed 84.5 per cent of the respondents saying yes. To be fair, fewer than 100 people took part in the poll so it may not reflect public opinion.
But Tisa Kenya also asked the public to sign a petition. Seeking a public agitation to stop the transfer of functions saying “the consequent transfer of functions from Nairobi County to the National Government does not meet the constitutional threshold” and that the County assembly had allowed itself to be used by the executive.
“The process of transferring the functions from Nairobi County government to the national government is illegal and unconstitutional,” argued Wanjiru Gikonyo, Programmes Director at Tisa-Kenya.
“We are concerned about the process and substance. Lack of public participation, CEC approval and assembly oversight. The transfer also fails to meet requirements of the law. It’s a veiled attempt to kill devolution by Jubilee party administration,” she added.
David Mutai, an advocate of the high court in Kenya said the county government act 2012 [Section 121 (4)] demands that the cabinet secretary in charge of devolution should have asked for parliamentary approval before assuming county functions.
In addition, he argued, the fourth schedule of the Constitution demands the national government continuously build the capacity and give technical assistance to the counties.
“It is therefore true to state that the National Government failed in its constitutional mandate.” Mutai said.
Usually, transfer of functions can happen if counties are unable to perform functions, but the national government must prepare a plan to aid the counties, not exactly take over.
As it is, the national government is supposed to take over for a renewable period of 24 months, according to a Gazette notice last month, but lawyers at a forum organised by Tisa-Kenya early in March raised doubts about the national government’s own failures.
“Knowing the national government and its numerous failures -top of which is corruption do you trust them and seriously consider this temporary?” Mutai posed.
Funding still a challenge
In fact, even after the transfer of functions the county would still be obligated to fund the transferred functions.
Mr Victor Odanga, a Public Finance Management Specialist at public finance advisory firm, ‘Expertise Global Consulting’, argued the county government should be better in dealing with its unpaid bills for example.
“The complexities of the intricate framework of budget formulation and implementation from both levels of government will make or break the temporary management of those functions by the national government,” Odanga argued in an advisory opinion on the issue, explaining that the matter is complicated by the fact that the fiscal year is already beyond its midterm.
“The county should retain this responsibility (of managing pending bills) until the end of the current financial year after which the functional responsibility can be fully transferred and performed by the national government.”
Need for a referendum?
Beyond the legal tussles, however, how should Nairobi be governed? There are those who suggest it should be a county government to do it, others say it should be under the national government. Rasna Warah, former communications official at UN-Habitat, the UN agency that helps prepare urbanisation planning programmes, says there is no right or wrong way.
“It could be either but the way President Uhuru hijacked Nairobi County. Well, there should have been a referendum at least or people’s participation,” she argued.
Nairobi has over 100 years of history but the Kenyan government chose it due to its central location in a cool climate. When a new constitution was passed in 2010, it became a county as the law drafters went back to the initial 47 colonial districts.
With its uncollected garbage, traffic snarl-ups and corruption, some have argued it should be under the direct management of the national government, much like Washington, DC.
Mr Maina Kiai, who is in charge of Alliances and Partnerships at Human Rights Watch, however disabused the labelling of Washington DC as the best example.
“There has been lots of talk in Kenya lately that handing Nairobi County to the central government is no big deal … similar to Washington DC and Abuja. This is dangerous and misleading – an intentional deflection from the real issues such a move raises for Kenya,” he argued on his Twitter page.
For him, Washington is poor comparison because the reason it was put under direct management was to deny majority blacks a chance to have a say in their city.
“The DC example, if anything, exemplifies subjugation of the city’s residents – not exactly a pleasant story to sell the Kenyan public. Second, DC and Abuja are the exceptions in the big scheme of things. Most capitals do just fine when run by devolved government, with their own autonomy, local services and leaders,” he gave the example of Pretoria, Ottawa, Berlin.
To be fair, Berlin for example became the capital of unified Germany after a tight vote with Bonn in the federal parliament (Bundestag) in 1991. Pretoria may not have lots of politics because it is the seat of the South African executive (Judiciary and parliament are in other cities; Bloemfontein and Cape Town receptively, while the commerce runs mostly in Johannesburg).
Abuja was built away from Lagos and made capital in 1991 to help unify a country divided with years of conflict. It is run by a local council, but ‘overseen’ by a federal authority.
In Delhi, a national capital territory since 1991, a lieutenant governor, appointed by the president of India is in charge. Another senior officer known as chief minister, and who is also appointed, helps to run it.
Being supervised by the national government, Delhi though is part of the National Capital Region (NCR), which includes other administrative regions called Tehsils in neighbouring states of Haryana, Uttar Pradesh, and Rajasthan.
So, it appears every capital must run on local realities.
“The bottom line is this is just a smokescreen to roll back devolution,” Human Rights Activist Kiai said of comparisons with Washington DC, which itself was formed out of a political compromise between northern and southern states.
“The move is not about what’s best for Kenya or Nairobi. It’s about helping the current regime, who hate the idea of Nairobi being in hands of anyone but themselves. And who can’t bear the fact that devolution means loss of control of resources and patronage.”
Whether Nairobi’s problems could go after the transfer is another story altogether. But it could help to keep watching.
What journalists should do
- Follow up on the legal process and the outcome. Whether it was lawful to transfer functions or not.
- Check out changes in revenue collection, for better or for worse
- Find out how the new administration will run garbage collection services
- Follow up on stalled projects like paving walkways, unclogging sewers and cleaning up recreational parks.
By Aggrey Mutambo