Nairobi Power Transfer: A Case Of Noble Motives But legally Problematic

Does the agreement undermine devolution and democracy?

In Summary

• In all fairness the 2010 Constitution envisages how to redress the leadership and governance crisis plaguing Nairobi and Parliament has enacted various laws such as County Governments Act and Intergovernmental Relations Act, Public Finance Management Act and the Leadership and Integrity Act, 2012. 

Nairobi Governor Mike Sonko signs the agreement at State House, Nairobi on February 25, 2020.
Nairobi Governor Mike Sonko signs the agreement at State House, Nairobi on February 25, 2020.
Image: PSCU

Since the election of Mr. Mike Mbuvi Sonko as the governor of Nairobi in August, 2017 Kenya’s capital has been governed with such gross incompetence and diminished responsibility that President Kenyatta was politically obligated to intervene in order to halt further degeneration and improve public services delivery. 

However in intervening to redress Nairobi’s governance crisis the President is required to abide with Article 1, 3(2) and 4 of the Constitution that respectively recognizes the people’s sovereignty, outlaws an attempt to establish a government otherwise than in compliance with the Constitution and declares Kenya a sovereign Republic which shall be a multi-party democratic state founded on the national values and principles of governance referred to in Article 10. 

These principles and values include sharing and devolution of power, good governance, rule of law, democracy and participation of the people, transparency and accountability.

In all fairness the 2010 Constitution envisages how to redress the leadership and governance crisis plaguing Nairobi and Parliament has enacted various laws such as County Governments Act and Intergovernmental Relations Act, Public Finance Management Act and the Leadership and Integrity Act, 2012. 

Reading the relevant provisions of the Constitution and these statutes it is easy to understand why the power transfer agreement between Governor Sonko and Devolution CS, Eugene Wamalwa has elicited a major controversy despite the general consensus that President Kenyatta was right to intervene. 

The questions that arise from the President’s intervention include: Is the agreement in compliance with the Constitution?  Does the agreement undermine devolution and democracy in managing the affairs of Nairobi County and what is the long term effect of this move?

The Constitution envisages three scenarios in which a county government can find itself in leadership, governance or capacity crises and challenges and it offers appropriate redress for the respective problems. 

First is the problem of incompetence on the part of the governor or his deputy and the prescribed solution is impeachment pursuant to Article 181 of the Constitution. 

Secondly is the systemic governance crisis triggered by exceptional circumstances and the prescribed solution is suspension of a county government pursuant to Article 192. 

Thirdly, is the problem of capacity and efficiency to perform or exercise specific power and the prescribed solution is transfer of functions and powers to the level of government that would perform them more effectively pursuant to Article 187.

By all yardsticks Nairobi’s governance problems are not systemic and undoubtedly revolve around the incredible incompetence and diminished responsibility of Governor Sonko and so the appropriate constitutional redress is impeachment. 

Given now that the power transfer agreement seeks to redress the undoubted shortcomings of Governor Sonko, good people must wonder about the prudence of invoking Article 187 to provide the solution of power transfer to remedy personal shortcomings through take-over by the National government of the main duties of the Nairobi County Government and leaving Sonko in power to mess up with a lesser portfolio. 

Leaving aside the normative elements of the power transfer agreement there are five constitutional issues that stem from it.

The first fundamental issue is that in the light of the fact the powers being transferred vest in the County government of Nairobi (defined by Article 176(1) as consisting of a county assembly and county executive) as opposed to the person of governor, the question arises to whether Mr. Sonko had any constitutional power to cede those powers under Article 187 of the Constitution. 

In my view the Nairobi County Government is a public body corporate whose decisions cannot be made solely by the Governor who is merely its chief executive officer.

The second issue is that Article 187 does not have the meaning being attributed to it and indeed does not give legal cover for the power transfer that has just been agreed upon. 

A purposive reading of the Constitution leads to the conclusion that efficiency in service delivery and administrative, personnel or human capacity are the bases of transfer of functions and powers between the two levels of government under Article 187. 

As example under Article 187 the apparent incapacity of Nairobi County to collect all accrued revenue can be solved by transferring revenue collection power to the Kenya Revenue Authority.  Similarly under the same provision the teachers’ crisis in North Eastern region can be redressed by transferring the function of primary education to the Counties of Wajir, Mandera and Garissa. 

Put differently, Article 187 provides for a mechanism of solving management issues of efficient operations and capacity building as opposed to the radical restructuring engendered by Nairobi County power transfer agreement.

Thirdly power and responsibility are siamese twins in the sense that upon those whom power is conferred responsibility is expected of them. 

The Fourth Schedule of the Constitution sets out the responsibilities of the two levels of government whilst Chapter Eleven of the Constitution and the County Governments Act provide for the legal framework of exercising power in respect of devolved functions.  It is for this reason that Article 187(3) provides that even where functions and powers are transferred to cure problems of capacity and efficiency, constitutional responsibility is retained with the government assigned the same by the Fourth Schedule. 

However the subject power transfer will engender and imply a hollowing out of Nairobi’s County government in a manner that it would be a mockery to hold it constitutionally responsible for whatever happens after the agreement comes into force.  Conversely the national government will effectively have been granted power without responsibility which is a greater mockery of the Constitution.

Fourthly, Article 174 of the Constitution sets out the objects of devolution of government which include promotion of democratic and accountable exercise of power and to enhance checks and balances and the separation of powers.  Pursuant to Article 200 in 2012 Parliament enacted the County Governments Acts to realize those objects of devolution. 

Whichever way we look at it, Nairobi County’s transfer of power agreement will require establishment of an institutional mechanism outside the framework of the County Governments Act to achieve its objectives, thus two centres of power will be inevitable and tragically this move reminds us of the 1984 takeover of Nairobi local government by President Moi effected through the dissolution of the city council and the formation of a commission to replace it.  It would be the saddest day for the 2010 Constitution if such a scenario were to take place in 2020.

Finally, it is important for all the rural elites that run Kenya or regards Nairobi County as a place of business to know that for more than half of its population, Nairobi is their only home and so they deserve as much devolved government as the residents of other native Counties like Nandi, Siaya and Murang’a. 

To say all this is not to deny that the Building Bridges Initiative (BBI) should not re-look at Nairobi’s governance problems but in the end it will help to summon their humility to appreciate that, when all is said and done, Mr. Sonko is a “self-made businessman” from Kwale County who came to the city, conquered it and in 2017 the Jubilee Party gave him a ticket to contest for Nairobi’s gubernatorial seat.

The writer is a constitutional lawyer ([email protected]).