County powers’ transfer should be the last option

On Tuesday, President Uhuru Kenyatta presided over a ceremony in which the Nairobi County Government handed over most of its powers and functions to the national government.

The action relied on Article 187 of the Constitution, which allows functions and powers of government at one level to be transferred to a government at another level. In 2015, the president opted not to dissolve Makueni County Government under Article 192 despite the Nyaoga Taskforce recommendation to dissolve it. In exercise of his discretion, the president considered the circumstances not warranting a suspension.

The fact that the person elected to run the affairs of Nairobi has thrown in the towel and invited the national government to take over raises serious issues pertaining to our constitutional structure, devolution and democracy. It is noteworthy that the governor is facing corruption charges, was barred from accessing his office and Nairobi County Assembly is planning to impeach him.

This raises questions: Is the agreement genuine, or is it a deal by the national government to gain control of the largest and most lucrative devolved unit? Does the governor have the authority to transfer powers and functions without the say of the county assembly, the Senate and the people of Nairobi?

Take measures

Transfer of powers and functions touches on Kenyans right to representation and devolution as a core national value and principle of governance. Under the constitution, any takeover by the national government must be justifiable. If justified, it obligates the national government to take measures that will assist the county government to resume full responsibility.

Furthermore, in order to debunk this agreement, we need to interrogate the Intergovernmental Relations Act (Igra) that was ostensibly enacted to provide mechanisms for smooth relationships between the county and the national government. In setting parameters for transfer, Section 26 of the Igra requires that the agreement for transfer contains eight crucial things: Specific legal provisions, reasons, performance standards and frameworks; performance deficits supporting the transfer; and terms and conditions including powers, competencies and a clear time frame.

This underpins that a transfer should be temporary, justified and necessary under circumstances such as natural disasters and disease outbreaks that render certain units unable to discharge their duties.

Corruption scandals

Section 28 is also very crucial because it elaborates on the criteria used to determine the transfer of power. As a matter of law, it requires clear and sufficient justification on why the powers have been transferred based on verifiable truths.

For instance, a poignant consideration would be whether the challenges faced by Nairobi will be solved by the national government. The last time I checked, the national government was embroiled in serious corruption scandals and misappropriation of funds and stalled development projects.

For a court of law to consider the legality of the agreement, it will have to consider whether, under the agreement, it is clear or evident that the national government is more competent and equipped in terms of capacity and has set accountability mechanisms.

It will also have to consider whether the national government is properly equipped to perform the transferred functions.

Finally, Section 29 of the Igra requires public participation mechanisms as a precursor for transfer of powers or delegation functions. This alongside the other requirements on necessity, time frame, terms and conditions and competence must be met to justify such a transfer of powers or delegated functions.

Devolution has transformed Kenya in many positive ways. Let us draw inspiration from Makueni County which after surviving the threat of dissolution in 2015, has risen and is one of the model counties in terms of service delivery. As such, dissolution and transfer of powers should be an option of last resort and not an agreement of convenience for political expediency.

Mr Kiprono is a Constitutional and Human Rights [email protected]