Elachi erred in dismissing Sonko's memo

By dismissing a memorandum by Nairobi Governor Mike Sonko without even presenting it for debate in the assembly, speaker Beatrice Elachi failed to provide the much-needed leadership in the county.

Section 24 of the County Government Act gives the Governor the prerogative to reject with reasons any Bill from the assembly, and to give recommendations on what needs to be done.

Upon receiving the memorandum from the governor, the speaker is required to subject it to debate for members to either accept or reject the recommendations. Should the members reject them and the governor still declines to assent to the Bill, it automatically becomes law after 14 days. This procedure is clearly outlined in Standing Order No.43 of the Nairobi assembly. 

However, what happened on Friday was a legal atrocity at its worst. Elachi not only unilaterally abrogated unto herself the responsibility of the assembly, to which she is only an ex-officio member, but also appointed herself a High Court judge, in contravention of Article 165 (3) (d) of the Constitution.

Elachi received the memorandum from Governor Sonko declining to assent to a supplementary budget that was recently passed by the House. Instead of presenting it to members, she dismissed it on a nonexistent technicality. She said Sonko has seven days to assent to it or it automatically becomes law.

The most plausible argument out there is that the 14-day rule only kicks in after members reject the governor’s memo. In the case where it was never presented to them for debate, then the 14 days don’t apply. The days only start to apply when the memo is brought for debate, even if it is three months from today.

So, what is the big deal with this supplementary budget? 

On February 25, President Uhuru Kenyatta and Sonko signed a deed transferring four functions from the county to the Nairobi Metropolitan Services (which incidentally has never been created by any law into a body corporate capable of suing or being sued). The deed came into effect on March 18. 

Prior to that, there had been a presidential decree that all government agencies and county governments must clear pending bills. The Finance executive proceeded to prepare a supplementary budget which aimed at removing money from new projects and recurrent spending in all sectors for a kitty to pay the bills.

When the supplementary budget was presented to the assembly for consideration, the Finance, Budget and Appropriation Committee chaired by MCA Robert Mbatia, on instructions from Elachi proceeded to rewrite it. This was to create votes under which the NMS would be allocated money. 

The problem is that the Public Finance Management Act, which governs how public money is spent, does not envisage or allow a county to transfer money to an outside entity.

Here is a brief journey of how money travels within the Nairobi county government cycle. First, users pay for services by directly depositing money into the county’s collection accounts in banks.

At the end of every day, these commercial banks transfer collections to the county’s Revenue Fund at the Central Bank of Kenya. To access it to pay for anything, the county Treasury has to prepare a list of intended payments and present it to the Office of the Controller of Budget.

If the Controller is satisfied, and having confirmed the county has the money in its CBK account, s/he writes a letter approving the withdrawal. The county Treasury then writes to CBK on the intended withdrawal, attaching the letter from CoB. CBK then releases the money to the county’s commercial bank account, from where it pays its bills through the IFMIS system.

With the four services of Health, Lands, Planning and Housing, Roads, Public Works and Transport and Environment and Water having been transferred to NMS, the money should follow the function. The question is how.

The Mbatia-led Finance committee first tried to sneak in a law that the Sh15 billion the county receives annually from the equitable share given by the national government to all counties should now go to NMS directly. That is devious and illegal. The Senate dismissed this idea with contempt.

The committee then took the proposed supplementary budget and inserted clauses, illegally transferring other functions to NMS that were not contained in the Deed of Transfer.

The Bill that the assembly passed, and which the governor rejected, said even ICT, Inspectorate Services, Finance and pending bills payments should be under NMS. This was an attempt to irregularly expand the functions previously outlined in the deed.

Sonko’s memo was to ask the members to correct this — not to take away more functions, and to allow the county executive to find ways of legally transferring money to NMS for the transferred functions.

It is in the public domain that Sonko and Elachi have not always agreed. But this is a case that requires partisan politics to be set aside and to find the best solution that will give Nairobians the best deal. For the speaker to disregard the memorandum, and dismiss it without even presenting it to the MCAs for debate was a very poor decision from a leader.

It denied the elected representatives the opportunity to discuss a pertinent issue and reach consensus.

Meanwhile, the County executive is drafting a Bill that will allow it to legally transfer money to the NMS. This is despite the fact that the NMS director general has never created even a single opportunity to consult with the executives and chief officers.

Such progressive action by the executive is what should be encouraged. Governor Sonko and his executive have never been against the transfer. The intention of the President has always been regarded as good, but some crooks want to take advantage to do what they have always wanted to do with Nairobi.

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