• The report makes the case that Nairobi should be given special status because it is dissimilar to other counties.
• A key principle of devolution is the sovereign equality of devolved units.
By a 156-page Report revealed to the country this week, the Building Bridges Initiative Task Force proposes an eclectic mix of proposals tailored towards addressing Kenya’s myriad of challenges.
Many of these proposals if endorsed, through a yet to be agreed upon process, will require programmatic, policy, legislative or even constitutional means to implement.
One of the more well-developed recommendations of the BBI relates to Nairobi, our capital city.
The report makes the case that Nairobi should be given special status because it is dissimilar to other counties.
The report argues-without providing any evidence- that from a resource sharing perspective, the Commission on Revenue Allocation struggles to factor in the special reality of Nairobi as the global headquarters of the United Nations in the Southern Hemisphere.
It further posits that the headquarters agreement entered into in 1975 enjoins Kenya rather than the county, to facilitate within Nairobi, adequate physical, environmental and infrastructural conditions mete for the international community.
This agreement further enjoins the government to give UNEP preferential importance similar to that accorded essential agencies of the Government.
It is fair to suggest that the performance of the county government of Nairobi under both Governors Kidero and Sonko has been woefully inadequate at best and grotesquely disappointing at worst.
But whether managed as a county as has happened in the last eight years or previously as a city council under the 40-year long superintendency of the central government, the city has never benefitted from effective leadership or sustained strategic and innovative development.
Thus, while appreciating that Nairobi has been poorly administered for a considerably long period of time, it is my view that the proposal by BBI to accord Nairobi a non-county special status presumably under the control of National government is problematic first, from the perspective of devolution theory and practice and second, from a practical reality of the evolving globalisation of territoriality.
A key principle of devolution is the sovereign equality of devolved units.
This principle means that notwithstanding differential social, economic and cultural situation among the units, each one of the 47 counties will be accorded equal treatment based on universally agreed principles set down in the constitution.
This is the gist of article 1(4) by which the sovereignty of citizens is exercised at national and county levels. The sovereign status of each of the counties is moreover emphasised by its distinctive character from the national government as stipulated in article 6(2).
This distinctiveness will be lost once the constitutional institutions of the county, namely the Assembly and Executive, are subsumed into national government in the manner proposed by BBI.
Moreover, once the door is opened for exceptionalism in determining the status of counties, no one knows how far this could go.
A county such as Lamu, for instance, is the seat of very strategic national assets including the new port and other maritime resources including possible offshore hydrocarbon resources in future.
A number of global private sector players and foreign countries may hold vast investments in Lamu county’s assets.
These actors would ordinarily desire that special dispensations be extended to them in order to protect or maximize their economic gains.
Should it be open to the national government to argue that these reasons warrant the designation of Lamu as a special zone under national government’s control?
The cooperative federalism adopted in our country which envisions distinctiveness of counties but also promotes operational interdependence means that through intergovernmental mechanisms and programmes, the national government can still support counties in order to make them more effective in service delivery.
In this respect, nothing precludes the national government from incepting programmes in partnership with the county of Nairobi in order to enable the county to provide the environment consistent with any state obligation to international institutions.
Further, effective implementation of the Urban Areas and Cities Act 2011 can enable Nairobi to be managed by special purpose institutions or committees under the supervisory remit of the county and national government.
For instance, the Act requires the Capital city to provide the infrastructure necessary to sustain the seat of the national government, offices of diplomatic missions, and efficient transport network among others.
Further, the Act requires the two levels of government to enter into an agreement regarding the performance of functions and delivery of services by the capital city touching on among others the administrative structure of the capital city, funding of operations and activities of the capital city, joint projects to be undertaken by both governments in the capital city and dispute resolution mechanisms.
There is thus already a coherent framework that is craving implementation which is capable of enabling Nairobi to meet any obligations.
Instead of seeking the designation of Nairobi county as special status, national government needs to engage institutions of the county and ensure adoption of laws and policies that can make Nairobi not only meet the minimum demands of the headquarter agreement with the United Nations but become a truly smart global city that is the envy of the region and the world.
Any effort to extend special designation to Nairobi will constitute a re-centralization quite contrary to the objectives of devolution and subsidiarity.
Korir Sing’Oei is the Legal Advisor, Deputy President’s Office. His comments are personal.