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KATIBA: Changing Nairobi’s status needs careful thought, regard for people

People walk as they get to CBD from Thika Road after Nairobi county put to effect the ban of matatus in the CBD. Photo/Monicah Mwangi
People walk as they get to CBD from Thika Road after Nairobi county put to effect the ban of matatus in the CBD. Photo/Monicah Mwangi

Kericho Senator Aaron Cheruiyot has drafted a Bill that would change Nairobi from a county to a responsibility of the national government, with a Cabinet Secretary with responsibility for Nairobi Affairs. The Bill is similar to one prepared by former Murang’a senator Kembi Gitura in 2016.

CONSTITUTION DRAFTS

Interestingly, early drafts for a new Constitution proposed something similar. The Constitution of Kenya Review Commission’s draft (2002) left the matter of governing Nairobi to an Act of Parliament. It said that the law must take account of the city’s role as national capital and major economic, administrative and social centre. But it must provide for the people of Nairobi to participate in the nation’s democracy.

No draft went into great detail, but none would have treated Nairobi just like any other county, with the same powers as the other counties. But, at the last minute (early 2010, after the Parliamentary Select Committee had done its worst) the Committee of Experts decided to leave Nairobi in the same position as any other county. Their final report did not explain why.

SO WHAT IS THE PROBLEM WITH NAIROBI AS A COUNTY?

The new Bill has, as usual, an explanatory memorandum, which says:

“Nairobi City is a focal point for development and Kenya's interaction with the rest of the world. It is the seat of the National Government, a strategic hub for business in Africa and the rest of the world and the headquarters of various international organs and embassies for numerous countries. Its cosmopolitan nature, central location and presence of key national government headquarters make it a city for all Kenyans. Nairobi City is therefore distinct from other counties and requires to be managed and planned for differently. In addition, Nairobi faces unique challenges that are notably different from other counties yet it has been subjected to the same revenue sharing formula as other counties.”

Gitura explained in newspaper articles that: “The national government is currently using a lot of its revenue on Nairobi in building, for instance, road by-passes, sourcing water for the residents and for the industries. These are matters the county government would have no capacity to deal with left alone with the money allocated to it by the national government. It is also not able to raise sufficient revenue to balance its budget.”

Ironically, although the first governor was “Opposition”, the shambles that many perceive to be the situation under the second governor, despite his being “Jubilee”, has perhaps given an impetus to this move.

LESSONS FROM ELSEWHERE

Many other capital cities around the world face similar issues. A city is a home to many people, who are entitled to participate in national democracy (as the CKRC said). Indeed, they would probably want to have a say in the sorts of decisions that local authorities (or, in Kenya, counties) make that affect the liveability of the city.

But a capital city serves national functions. It is a symbol of the nation (sometimes its name is synonymous with national government — people might say “Washington decrees” or “New Delhi has decided” meaning the US or Indian government). Its buildings, roads (even ones that would be county roads in any other county), and its open spaces are of national importance. Its water and electricity, its public transport, and its traffic jams, are not just local concerns.

Local governments often raise money by charging a property tax (we call it “rates” because the amount depends on the property value). In a capital city, a lot of the land is occupied by national institutions. Do they have to pay that tax? (Kenyan law seems in some confusion on this point.)

There is a wide variety of approaches to dealing with the status of capital cities. In many countries, capital cities are national territories with fewer powers than other sub-national areas. Some have a status similar to other governments below the national level, though perhaps with rather fewer powers. Powers that other sub-national governments have may be shared between capital and national authorities. They may have special financial arrangements with the national government. Residents may have less democratic space than in other places (in Washington, residents do not even vote for members of Congress). Some have democratic local authorities within the national capital area.

On some estimates the population of Nairobi now may be as high as six million. Proposals to make it a government department seem to imply that, while Nairobi will elect MPs, as now (presumably the same nine constituencies), it will have no senator, and no local assembly, and no woman county representative.

One oddity is that many people who live in Nairobi do not consider it “home”. They vote somewhere else, and expect to be buried somewhere else. This may be exaggerated; 2.25 million people in Nairobi were registered to vote in the 2017 elections. That is not such a low percentage of potential voters. The IEBC registered 19.6 million voters overall – 39 per cent of all residents, many of whom are not citizens so cannot vote. So most Nairobi residents vote in the city, not somewhere else.

In reality, a county in Kenya does not have many more powers than local authorities have in many countries, and used to have here. Police are a national, not a county, matter. Possibly city askaris are unconstitutional anyway – a topic for another article. Counties do not control education (except early childhood and “village polytechnics”). They do control most health facilities (but three national referral hospitals are in Nairobi).

A national ministry will be concerned with the sorts of things identified earlier. The current business over traffic free days is an example. But does the Minister of Transport actually have the power to ban traffic in Mama Ngina Street? “Traffic and parking” are county matters. Incidentally, a county could transfer some matters to the national government by agreement between the two.

Will a national department be concerned about issues of concern to the true residents of Nairobi? Not the legislators, civil servants and judges, and business people, who occupy Upper Hill, Harambee Avenue and City Hall Way, but the residents of Buruburu, Huruma, South C and Eastleigh? Will a national government department be concerned about encouraging urban agriculture, on which Nairobi passed a law in 2015, after much interaction between county and knowledgeable civil society?

Some people might argue that the CDF will cater for local concerns. So, would Nairobi MPs get more than others because all matters would be within their remit? Some of us think that the CDF is unconstitutional anyway, making MPs administrators, and not just legislators.

ON NOT RUSHING INTO SOLUTIONS

A solution for Nairobi that will really fit Nairobi’s realities is not something that can be reached with a simple stroke of the legislative pen. Why is Kenya so prone to rush into things without proper consideration?

This is a very complex matter. The current proposal will take away some voting rights of citizens, it will reduce the representation of women of Nairobi, it will undo devolution for perhaps 12 per cent of the people of Kenya. It would require a referendum.

What solution would ensure Nairobi is an efficient, welcoming city for the public governmental functions of a national capital, and for its international role?

And, that solution must also ensure, as a matter of equal or greater priority, that it is a city that embraces its residents, the people who make it work and make it welcoming, and does not drive them to its periphery. Can we ensure the right to the city is not further undermined with more of what Ambreena Manji calls “spatial injustices” with more exclusionary government developments, to add to the malls and gated communities?

As long ago as 1994, Mazingira Institute said the people have “the human right to live with a safe and sufficient water supply, sewers, drains or services to cope with waste disposal, and without overcrowding and cramped living conditions” (The Struggle for Nairobi).

The struggle continues!