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September 21, 2018

Place Capital City under national government

Nairobi's CBD on March 10. Photo/Monicah Mwangi
Nairobi's CBD on March 10. Photo/Monicah Mwangi

I came to Nairobi in the mid-seventies when I joined university and I have not left since then.

I have watched the city grow and I recall very clearly when we took services by the City Council for granted because everything was working to our general satisfaction. Buruburu was one of the most beautiful estates to stay in, and you could not erect a wall around your house — leave alone build an extension — without approval of the director of City Planning. It did not matter who you were!

Garbage was collected on time, transport on Kenya Bus was flawless, the lighting system worked and yes, Nairobi was the green city in the sun. Today and except for landmarks like the Hilton and the KICC, one can hardly recognise the original estates or even the city centre for that matter.

Nairobi is and has been the capital city of our country at least since 1907, when it took over from Machakos as the capital town. In 2016 it had a population of about 6.5 million people and there is not a single ethnic community of Kenya that is not represented in the city.

It is a regional hub and a center for many international conferences with a very large number of foreign missions and embassies, including the UN, representing their countries not just in Kenya but in other countries within the region. Nairobi produces at least 60 per cent of the country’s GDP.

The national government is currently using a lot of its revenue on Nairobi in building, for instance, road by-passes, sourcing water for the residents and for the industries. These are matters the county government would have no capacity to deal with left alone with the money allocated to it by the national government. It is also not able to raise sufficient revenue to balance its budget.

By virtue of its being the seat of government, there are many national installations and government buildings. I have always thought it ridiculous that a county government would contemplate levying rates on such.

The Constitution of Kenya (Amendment Bill) (No. 2 ), Bill, 2016 was published in the Kenya Gazette on November 21, 2016.

It is a Bill that had taken me a lot of time to consider and to consult with the Senate Legal Department. In it, I proposed that our Constitution be amended such that the territory of Kenya is divided into the National Capital City and the 46 counties.

In short, that Nairobi be specifically designated the National Capital City, the seat of the national government — and thus cease being a county.

I went further to propose that the President would have the power under the Constitution,to appoint a Cabinet Secretary in charge of the Capital City, to exercise such powers and others as may be delegated to him by the President.

In full realisation that the residents of Nairobi pay taxes and, therefore, must have representation (no taxation without representation), I proposed that although there would be no senator or a county assembly, the constituencies, as currently constituted, would remain, meaning representation in the National Assembly was catered for.

 

NOT A JUBILEE BILL

Finally, I proposed that an Act of Parliament would create other relevant administrative structures created for the City. Here, I had in mind a structure where there would be an overall (Lord) Mayor for the City, with mayors for smaller units or boroughs (maybe equivalent to the current wards) who sitting together under the Lord Mayor would run the affairs of the Capital City under the auspices of the national government. The mayors would be elected by the people of Nairobi.

The Bill was published at a time when temperatures had started to rise as we approached the 2017 General Election and the reaction was swift. There were those who claimed I was acting at the behest of Jubilee to stop certain people from running for governor and, indeed, I recall secretary general Raphael Tuju, calling a press conference at Jubilee House to dissociate the party from the Bill.

To his credit, he did not go to its merits, only stating I was within my rights as a citizen to bring it.

I wish to reiterate that save for the Senate Legal Department, I had not consulted any politician on my intentions and I am not one to be used by anyone for selfish ends.

 

MUST BE IN SYNC

Considering the volatility of party politics in Kenya, one needs to only take a scenario of the governor of Nairobi coming from a minority party, and completely refusing to work with the government of the day. It could make it very difficult for the government.

The city is, therefore, an entity that must be under the national government of the day so that its operations are not embarrassed, affected or interrupted by partisan politics.

In coming up with the Bill, I was not reinventing the wheel. There are a good number of countries in the world that have taken this path, including Australia, Brazil and Nigeria, with the best known being the US, pertaining to Washington, DC, the seat of its government.

The American Constitution provides that Congress shall have power to exercise exclusive legislation in all cases “…over such District as may … become the seat of the Government of the United States”.

James Madison, who went on to become the Fourth President of the US — outlining the reasoning behind the provision — said:

“The indispensable necessity of complete authority at the seat of government carries its own evidence with it…without it, not only the public authority might be insulted and its proceedings interrupted with impunity; but a dependence of the members of the general government on the State comprehending the seat of the government, for protection in the exercise of their duty, might bring on the national councils an imputation of awe and influence, equally dishonorable to the government and dissatisfactory to other members of the Confederacy.”

In other words, Madison was worried that if the capital were to be a State, members of the national government would be unduly beholden to it and that the State would be in a position to interrupt the operations of the national government, by blackmail if need be.

We cannot afford a county government in Nairobi interfering with the attainment of national goals, either because of an intransigent governor from a minority party or by reason of his sheer ineptitude. Nairobi must reflect the vision of the national government of the day.

I was able to defend the Bill before the Legal Affairs Committee of the Senate after it was read the first time and I recall Makueni Senator Mutula Kilonzo Jr who chaired the committee that day giving his full support to it as did virtually all the other members.

It would have gone for public hearing thereafter but then the Senate adjourned sine die in preparation for the election.

I am still convinced that we cannot afford to leave Nairobi to partisan politics. I appreciate it would take a referendum for the Constitution to be changed to accommodate the thinking of the bill.

Our Constitution has now been tested for close to eight years and it’s obvious that a good number of its provisions need to be revisited with a view to making changes where necessary.

One such change, I submit, would be to bring Nairobi, as seat of the government, under the auspices of the national government.


Gitura  was Murang’a senator from 2013-17, when he also served as Deputy Speaker of the Senate

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