TEDIOUS PROCEDURE

Why it will be tough for state to take over county functions

Amendment unanimously passed by lawmakers to protect the devolved units

In Summary
  • The functions are performed by the Nairobi Metropolitan services, state body headed by Mohamed Badi.
  • Already, the county governor Anne Kananu has extended the term of the deal by six months.
Devolution committee chairman Moses Kajwang briefs the media after the committee met at Senate chambers on November.3,.2021.
Devolution committee chairman Moses Kajwang briefs the media after the committee met at Senate chambers on November.3,.2021.
Image: EZEKIEL AMINGA

Senators have approved a bill providing tough procedures for the transfer of functions between the national and county governments.

The Intergovernmental Relations (Amendment) Bill, 2021 was unanimously passed by the lawmakers to protect the devolved units ‘whose functions have been under threat of takeover.’

The approval heralds the end of an era when the national government could arbitrarily take over county functions without consulting the county assembly and the public.

In 2020, the national government took over key roles of the Nairobi city county after former Governor Mike Sonko signed a deal with the national government.

Health, transport, public works, planning and auxiliary services were transferred in the deal that has been severely criticised as opaque as it did not involve the participation of the public.

The functions are performed by the Nairobi Metropolitan services, state body headed by Mohamed Badi.

Already, Governor Anne Kananu has extended the term of the deal by six months.

According to the bill that now awaits the approval of the National Assembly before it is signed into law by President, transferring functions between the two levels of governments will be a tedious and consultative process.

“The principal objective of this bill is to amend the provisions of the Intergovernmental Relations Act, 2012 to provide a comprehensive framework on the transfer of powers, functions or competences by either national or county governments,” the bill reads in part.

The bill is sponsored by Homa Bay Senator Moses Kajwang.

Kajwang chairs the Senate Devolution and Intergovernmental Relations Committee.

Kajwang’ said Sonko’s transfer of Nairobi county functions exposed certain gaps in the manner in which the transfer was effected and oversight mechanisms of the transferred functions.

“The transfer of functions from one level of government to the other should be so elaborate, and one that respects and recognises the important role of the county assembly and the Senate,” he said.

Article 187 of the Constitution provides for the transfer of functions between levels of governments upon an agreement.

For a county government function to be transferred, the Bill states, the county assembly and the senate must sanction movement.

The county executive committee member shall submit a draft agreement under section 26 of the principal act, to the clerk of the respective county assembly for tabling before the county assembly.

“The county assembly shall, within a period of thirty days from the date of tabling, consider the agreement and may, by resolution supported by a majority of the members of the county assembly, approve, with or without amendment or reject the agreement,” the bill says.

Where a county assembly resolves to approve the agreement, the speaker of the county assembly shall inform the speaker of the Senate, in writing, of that resolution within seven days.

A county assembly shall exercise oversight over a power, function or competency transferred or delegated by a county government.

The Senate speaker upon receipt of notification of the approval of any such resolution shall then convene Senate session to consider the bill within 30 days.

The county assembly and Senate shall retain oversight role of the transferred function (s).

For a function of the national government to be transferred to the county, the Cabinet Secretary shall submit an agreement to transfer a power, function or competency of the national government to a county government to the speaker of the National Assembly.

The National Assembly shall consider the request within 30 days. The House retains the oversight role over the function (s) transferred.