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Legal battles await decision by Uhuru, governor: Lawyers

By Rawlings Otieno and Wilfred Ayaga | February 26th 2020
Eukuru Aukot and Nzamba Kitonga

Legal experts were yesterday divided over Nairobi Governor Mike Sonko's decision to surrender some county functions to the central government.

Lawyers said while the Constitution provides for transfer of functions between levels of government, they questioned the procedure followed when Sonko gave up some of the key county functions.

There is fear that the procedure used may attract some legal battles.

Thirdway Alliance leader Ekuru Aukot commended Sonko for making the move, but equally challenged the national government to transfer some of its functions to counties. 

Dr Aukot, who was part of the defunct Committee of Experts (CoE) on constitutional review that midwifed the 2010 Constitution, said the idea to create the two levels of government was to form a partnership that would ensure citizens got quality services.

“The idea was to create a partnership between two levels of government so that the citizens get the best services,” said Aukot.

Article 6(2) of the Constitution says governments at the national and county levels are distinct and inter-dependent, and shall conduct their mutual relations on the basis of consultation and cooperation.

Makueni Senator Mutula Kilonzo Jrn, while pointing to serious constitutional issues, wondered whether the county assembly would oversee the national Executive after the functions were transferred and wondered whether they would be reverted at some point.

“I doubt if the county assembly oversight the National Executive. Will the functions revert? I doubt that too. Will the county assembly budget for the assigned functions? Unlikely! Will we include them in county revenue allocation? These are serious constitutional issues,” said Mr Kilonzo Jrn.

His Nyamira counterpart Okong’o Omogeni said the law had been applied as regards Articles 187 and 189, as read together with Section 24 and 25 of the Inter-governmental Relations Act. He, however, pointed out that the laws would only apply if Sonko had notified the county assembly.

Abdication of duty

“Politically, it is an indication of failure and abdication of duty. His continued stay in office is untenable,” said Mr Omogeni.

James Mwamu, a constitutional lawyer, said the participation of the county assembly and residents of Nairobi was required before the decision was reached.

Mr Mwamu faulted the move by President Uhuru Kenyatta and Sonko, saying the entire arrangement to transfer the functions to the national government was illegal.

“To transfer the functions from the county government needed an approval by the Cabinet, the input of Council of Governors and Nairobi County Assembly. Sonko has no legal authority to transfer functions without the approval of the county assembly,” said Mwamu.

Martin Oloo, a lawyer, concurred with Mwamu, saying a governor could not exercise such function as contemplated in Article 187 without the input of the county executive, county assembly and the Cabinet. “Can a governor exercise such powers of transferring of county functions to the national government without the approval of the assembly? This move has simply created a gap for litigation,” said Mr Oloo.

Nzamba Kitonga, the chairman of the defunct CoE, also raised questions about the process. “Although the Constitution allows it, what would raise questions is the modalities because there should have been public participation and consultations with the county assembly. What may have prompted this move are the problems currently facing the governor, such problems as the nomination of the deputy governor. Technically, the governor is still in office and the current impeachment process will go on,” said the lawyer.

Peter Wanyama, also a lawyer, said there should have been public participation and approval of the county assembly and Senate.

“It appears to be procedurally wrong. Transfer of functions cannot just happen. There must be public participation and approval by the county assembly and the Senate. The period within which the national government will run the affairs of the county must also be specified in the agreement. They put the cart before the horse,” he said.

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