• Intergovernmental Relations Act 2012 says the agreements on transfer of powers shall include the reason for the transfer.
• National Assembly shall be notified of the decision to transfer a national government power, function or competency.
Image: PSCU
Devolution CS Eugene Wamalwa officially gazetted the transfer of some functions from the county government of Nairobi to the national government.
The gazettement comes following the agreement sealed on Tuesday at State House between the CS and Governor Mike Sonko presided by President Uhuru Kenyatta and Senate Speaker Kenneth Lusaka.
In a gazette notice dated February 25, the CS said the two governments reached an agreement pursuant to Article 187 of the Constitution as read with section 26 of the Intergovernmental Relations Act, 2012.
He confirmed that the county unequivocally transferred Health, Transport, Planning and Development Services and the Public Works, Utilities and Ancillary services to the national government.
Image: PSCU
As the Intergovernmental Relations Act 2012 allows such kind of transfer of powers, including the agreement and signing of the deal, there are also steps to be followed.
The Act states that the agreement shall be published in the Kenya Gazette and the county Gazette in respect of the county to which it relates, at least 14 days before the effective date of the transfer.
It also says that the National Assembly shall be notified of the decision to transfer a national government power, function or competency.
Also, the Act says the county assembly shall be notified of the decision to transfer a county government power, function or competency.
According to the Act, the agreements on transfer or delegation of powers or functions shall include the reason for the transfer of functions and the performance standards and frameworks with respect to the transfer.
It also states that there should be a capacity-building framework for enhancing any deficits identified in the entity to which the transfer has been effected.
Under these circumstances, the Act demands the terms and conditions for the exercise or performance of the power, function or competency including the time frame.
Principles of transfer or delegation of powers
Section 25 of the Act states that both levels of government should ensure that the assignment is to the level of government best placed to exercise or perform the power, function or competency in accordance with Article 187 of the Constitution.
Also, they should ensure that adequate resources are provided to carry out the power, function, or competency as well as ensuring that the transfer is in accordance with the procedures set out.
They are also required to safeguard the constitutional responsibility assigned to the level of government during the transfer.
Criteria for transferring powers, functions or competencies
Section 28 of the Act highlights the criteria for the transfer or delegation of powers.
The deal should include the capacity of the entity to which the power function or competency is being transferred or delegated; (b) the extent to which the transfer or delegation would allow for accountability; (c) the extent to which the power, function or competency would best be performed by a single authority across a county, city, municipality or the Republic; (d) the existence of the level of technical and managerial expertise required to perform a transferred or delegated function or competency; or (e) whether the provision of the service requires substantial inter-county or large-scale infrastructure.
According to the Constitution, 1) A function or power of government at one level may be transferred to a government at the other level by agreement between the governments if:
(a) the function or power would be more effectively performed or exercised by the receiving government; and (b) the transfer of the function or power is not prohibited by the legislation under which it is to be performed or exercised.
The signing of the agreement was also witnessed by the Speaker of the Senate, Kenneth Lusaka and the Attorney General Paul Kihara.