• Questions arising from Uhuru's assumption of power in the intervention include whether the agreement complies with the Constitution, whether the move undermines devolution and democracy in managing Nairobi and whether the long-term effect is positive.
• The Constitution envisages three scenarios in which a county government can find itself in leadership, governance or capacity crises and challenges and offers appropriate redress.
Since the election of Mike Sonko as Nairobi governor in August 2017, Kenya’s capital has been governed with such gross incompetence that President Kenyatta was politically obligated to intervene.
This was in order to halt further degeneration and improve service delivery. In this intervention, however, the President is required to abide by Article 1, 3(2) and 4 of the Constitution.
The provision recognises the people’s sovereignty, outlaws an attempt to establish a government in violation of the law and declares Kenya a sovereign republic with a multi-party democracy founded on national values and principles of governance cited 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 Constitution envisages how to redress the leadership and governance crisis plaguing Nairobi. Parliament has also enacted laws such as the County Governments Act and Intergovernmental Relations Act, Public Finance Management Act and the Leadership and Integrity Act, 2012.
By reading key constitutional provisions and these statutes, it is easy to understand why the power transfer agreement between Governor Sonko and Devolution CS Eugene Wamalwa has elicited controversy, despite the general consensus the President was right to intervene.
The questions that arise from the intervention include whether the agreement is in compliance with the Constitution, whether the move undermines devolution and democracy in managing the affairs of Nairobi and what the long term effect of this move is.
The Constitution envisages three scenarios in which a county government can find itself in leadership, governance or capacity crises and offers redress.
First is the problem of the incompetence of the governor or his deputy and the prescribed solution is impeachment pursuant to Article 181.
Second is the systemic governance crisis triggered by exceptional circumstances and the prescribed solution is the suspension of a county government pursuant to Article 192.
Third is the problem of capacity and efficiency to perform or exercise specific power and the prescription is the transfer of functions and powers to the level of government that would perform more effectively pursuant to Article 187.
By all yardsticks, Nairobi’s governance problems are not systemic and undoubtedly revolve around the incompetence and diminished responsibility of Governor Sonko. The appropriate constitutional redress, therefore, is impeachment.
Given that the power transfer agreement seeks to redress Sonko's undoubted shortcomings, people of goodwill must wonder about the prudence of invoking Article 187 as a remedy to the personal shortcomings through the takeover of the county's main functions.
This leaves 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 is that in light of the fact that the functions being transferred are vested vest in the 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 is whether Sonko had any constitutional power to cede those powers under Article 187. In my view, the Nairobi government is a public institution 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 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 an example under Article 187, the apparent incapacity of Nairobi county to collect all accrued revenue can be solved by transferring the revenue collection role to the Kenya Revenue Authority. Similarly, under the same provision, the teachers’ crisis in Northeastern 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 the Nairobi power transfer agreement.
Thirdly, power and responsibility are Siamese twins in the sense that upon those whom power is conferred, responsibility is expected. The Fourth Schedule of the Constitution sets out the responsibilities of the two levels of government, whilst Chapter 11 and the County Governments Act provides 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 of power transfer will engender and imply a hollowing out of the Nairobi county government in a manner making it 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 the responsibility, which is a greater mockery of the Constitution.
Fourthly, Article 174 sets out the objects of devolution of government which include the promotion of democratic and accountable exercise of power and to enhance checks and balances and the separation of powers.
Pursuant to Article 200, Parliament in 2012 enacted the County Governments Acts to realise those objects of devolution. Whichever way we look at it, the Nairobi transfer of power agreement will require the establishment of an institutional mechanism outside the framework of the County Governments Act to achieve its objectives.
Two centres of power will thus be inevitable and tragically [at odds], this move reminds us of the 1984 takeover of Nairobi local government by President Daniel Moi achieved 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 regard Nairobi county as a place of business to know that for more than half of its population, the capital is their only home. They thus deserve as much devolved government as the residents of other native counties such as Nandi, Siaya and Murang’a.
To say all this is not to deny that the Building Bridges Initiative 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, Sonko is a 'self-made businessman' from Kwale county, who came to the city, conquered it and in 2017 the Jubilee Party gave him the ticket to contest for Nairobi’s gubernatorial seat.
The writer is a constitutional lawyer ([email protected]).