Unconstitutional takeover of Nairobi County functions must be resisted

On June 18, Justice Hellen Wasilwa of the High Court ruled that the Deed of Transfer of Functions, executed between the national government and the Nairobi County government was unconstitutional and unlawful. 

She further directed the national government to rectify the illegality within 90 days. The ruling was in response to a case filed by activist Okiya Omtatah, who sought to challenge and subsequently reverse the transfer of functions signed at State House in February this year. 

While invalidating the take-over of key functions by the national government, the High Court raised major and fundamental constitutional concerns that cast doubts on President Uhuru Kenyatta and his government’s commitment to protect, defend and strengthen devolution. That the signed Deed was not approved by the County Assembly of Nairobi, therefore making it unlawful, was an indictment of the president’s lack of political interest to defend the Constitution.

Article 187 (1) of the Constitution indicates that a function or power of government at one level may be transferred to a government at the other level by agreement between the concerned governments. However, Nairobi County Assembly was not engaged in the negotiations leading to the agreement, and even Governor Mike Sonko is on record having said he didn’t authorise any action that involved the transfer of staff from Nairobi County to the Nairobi Metropolitan Service.

This judgement, therefore, casts the president as being anti-devolution. He deliberately ignored the county assembly on a matter that clearly requires the assembly’s participation, debate and approval. In addition, the Public Service Commission (PSC) and not the County Public Service Board was preferred in the secondment/deployment of 6,052 employees from the Nairobi County to the Nairobi Metropolitan Service (NMS). 

The president, in creating NMS, abused his powers under Article 132(4) (a) of the Constitution, which allows him to establish an office in the public service in accordance with the recommendation of the PSC. This provision does not permit him to ignore the law while creating such an office. 

The blatant disregard of the laws, particularly on devolution, is a pointer to deliberate efforts by the national government to weaken county governments. This may result in the creation and subsequent advancement of a political narrative that devolution has failed, and therefore necessitate the return to the centralised system of governance. This is a worrying trend that must be resisted. It raises concerns about what surprise awaits devolution in the clamour for constitutional reforms, through the Building Bridges Initiative. Can the president be trusted to deliver a constitution that provides for a stronger framework for the implementation of devolved governance?

Over the years, devolution has found succour only in the courts. The executive and the national assembly has always shown contempt and lack of interest in strengthening or seeing devolution succeed. For instance, while the national government budgetary allocation has always grown with the growth of the national budget, the allocations to county governments has neither matched this growth nor that in the national GDP.

Allocation of resources is one critical factor that determines the effectiveness and usefulness of county governments. Without adequate resources, county governments will be rendered ineffective and unnecessary. Under President Kenyatta’s watch, the simple budget-making processes have been ignored in favour of the national government. For instance, the budget estimate for FY 2019/2020 was read in the National Assembly without the Division of Revenue Bill 2019, which dictates the sharing of revenue raised nationally between the national and county governments. The implication was going to be calamitous since devolution is entirely dependent on vertical sharing of revenues, in the absence of which it is not possible for the counties to deliver on their mandate and services.

It would be in the best interest of the country for the president to stop pursuing the take-over of Nairobi County by the national government. Article 6(2) of the Constitution, which provides for consultation and cooperation as the basis upon which the two levels of government shall conduct their mutual relations, must be respected.

In the event that the transfer of functions is unavoidable, the relevant and applicable laws should be adhered to. Devolution must be protected, defended and strengthened. Any attempt to weaken it must be resisted.

Mr Annan is Programme Adviser, Anti-Corruption & Devolution, Kenya Human Rights Commission