DEVOLUTION

Legal and political intrigues around 'Nairobi takeover'

The way it was animated has triggered many political, constitutional and legal issues.

In Summary

• With political intrigues emanating from various theories, there is the constant push and pull between the national and devolved units and more particularly to Kenya that there are those who wish to emasculate devolution.

• There has also been a growing appetite to delist Nairobi as a county and govern it

President Uhuru Kenyatta and Senate Speaker Kenneth Lusaka look on as Nairobi Governor Mike Sonko and Devolution CS Eugene Wamalwa sign the agreement at State House, Nairobi on February 25, 2020.
President Uhuru Kenyatta and Senate Speaker Kenneth Lusaka look on as Nairobi Governor Mike Sonko and Devolution CS Eugene Wamalwa sign the agreement at State House, Nairobi on February 25, 2020.
Image: PSCU

The now popularly referred to as the ‘Nairobi Takeover’ where the Nairobi county government has purportedly transferred some functions to the national government through Article 187 of the Constitution, has elicited a lot of comments and interest from Kenyans.

Article 187 allows, through the principle of subsidiarity (level of government that best performs the function), transfer a function from one to another.

The intrigue over the said transfer comes with valid reasons.

The manner in which it was animated has triggered many political, constitutional and legal issues. The seemingly covert manner in which the venture was undertaken leaves many pondering why, if for genuine ‘altruistic’ intentions (which do exist), was the matter conducted confidentially. Kenyans learnt about it, late in the evening of the day it was executed (more discussed below).

 
 

It is no secret that Nairobi City County government and its executive, in particular, has for a while now been facing political and operational challenges, with it running for over two years without a deputy governor.

And worse, in the recent past, it has been without its governor, after Mike Sonko was effectively barred from office by the courts pending the conclusion of a graft case he is facing. Expectedly, therefore, something had to give.

SUSPENSION OF COUNTY GOVERNMENT

Some have argued that perhaps Article 192 of the Constitution that provides for the suspension of a county government when during emergency situations triggered by internal conflict or war or “(b) in any other exceptional circumstances.”, should have been used. And this in two ways.

First, inasmuch as there is the ready allusion that ‘internal conflict’ (which the Constitution does not define) has a bearing to strife involving the military or violence, and especially because of the use of the word ‘or, the phrase may also refer to a breakdown or serious crisis in a county’s governance or decision-making ability.

This crisis, without belabouring, exists in Nairobi and has been for a while now when it was running without a ‘stand-by’ governor.

The President could have gone ahead to suspend the county government, put in place a caretaker government for 90 days, after which the Nairobi electorate would have gone back to the ballot if the suspension was not halted by the Senate.

Secondly, it can also be argued that exceptional circumstances that warrant suspension of the Nairobi county government do exist, again, due to the above reasons.

However for these to hold, a commission appointed by the President must inquire into the veracity of the allegations and the Senate has endorsed the suspension, which again lasts for 90 days subject to termination by the Senate at any time, and eventually leads to fresh elections.

This route, however, comes with the limitation that where a quick resolution is required, the process is an encumbrance.

 
 

Advantages from the use of 192 abound. First, the moratorium is time-bound – 90 days. Secondly, it is invoked forensically (commission of inquiry and the Senate) and guarantees checking and accountability (the Senate).

Lastly and most importantly, it ensures that wananchi, through whose sovereign authority the county government operates, have the last say on who serves them if the reasons leading to suspension remain unresolved.

Article 192 ensures an inclusive, participatory and timed process. Again it must be said that this method takes time to have the leadership and therefore governance crisis resolved.

The other method that could have been used to resolve the impasse is one that is already in motion – the impeachment of the suspended governor.

If it eventually leads to his removal by the Senate, then it opens a path for Nairobians to elect a new governor because a substantive vacancy as envisioned under Article 182 (5), where the Speaker shall hold fort for sixty days before the said election.

This again comes with the advantage that it is the residents of the city that shall eventually bequeath authority to whomever they deem and perceive fit to execute the functions of a county government for their benefit.

This route, however, also takes time (impeachment process, 60 days, elections) and may not be best suited for a quick resolution.

SHY ARTICLE 187

Enter the not until a few days ago, the rather shy Article 187. This article shall at this moment examine in detail the veracity of its use since a matter has already been filed in court challenging its use.

Questions abound as to whether the agreement signed by the national and Nairobi governments is effective.

Does Governor Mbuvi have constitutional and legal authority to effectively commit Nairobi to such transfer?

Assuming he does, can he do that without the resolution of the Nairobi county executive that constitutionally is supposed to function collegially and with the blessings of the county assembly that is part of the government (Article 176(1))?

Were Nairobi residents consulted considering that public participation is and as courts have held, a constitutionally required decision-making facility, hence as Pointed out above, why the covertness and confidentiality?

What is the fate of county employees serving in the portfolios that have now been ‘nationalised’?

How does the county assembly effectively oversight the national government insofar as the said functions are concerned? Considering the urgency of the situation, impending calamities like the Coronavirus epidemic, was Article 187 invoked through the doctrine of necessity?

Are the four functions the doormat towards a gradual takeover These and others are issues that have left the public wondering and are now in the hands of the courts and other relevant agencies to give direction.

Finally, Nairobi is Kenya’s capital city, the seat of national government and a regional commercial and transport hub.

So when Nairobi itches, the country and region scratch. Often times when there is a matter of national concern, will one travel to other parts of the country and be met with the question – “Na huko Nairobi mnasema nini juu ya hii maneno?” – basically, what are you Nairobi folks saying about this issue? What happens in Nairobi, especially on matters political, despite devolution, has a butterfly effect on what happens in other parts of the country.

With political intrigues emanating from various theories, prominent being that globally, there is the constant push and pull between the national and devolved units and more particularly to Kenya that there are those who wish to emasculate devolution. And if possible wish it away as was the case with the Majimbos.

There has also been a growing appetite to delist Nairobi as a county and govern it otherwise, the well-intentioned Article 187 with similar numbering as 1-8-7 — the coding used in the US state of California’s Penal Code to stand for murder — should not be used as an avenue to gradually kill devolution, but one to strengthen and improve it.

Mkangi is a constitutional expert and consultant