Nairobi City County could get special status if the Building Bridges Initiative (BBI) report is endorsed.
This could signal the take-over of the county by the national government as the report seeks to elevate its status to be superior to the 46 counties, arguing that it is the country’s economic and diplomatic hub.
The draft Constitution of Kenya (Amendment) Bill 2020 seeks to amend Article 200 of the Constitution by inserting the following new clause: “Legislation shall make further provisions on the functions relating to the Nairobi City County assigned to the national government under the Fourth Schedule.”
The Bill proposes to amend Article 200 to require that Parliament enact a law to provide mechanisms for carrying out certain functions relating to the city-county distributed to the national government.
Article 200 stipulates: Parliament shall enact legislation providing for all matters necessary or convenient to give effect to this Chapter. In particular, provision may be made with respect to—the governance of the capital city, other cities and urban areas, the transfer of functions and powers by one level of government to another, including the transfer of legislative powers from the national government to county governments.”
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The BBI report has retained the structure of the county governments as protected in the Constitution, unless repealed through a referendum, but seeks to surrender functions of Nairobi County to the national government as is the case currently.
BBI Steering Committee Vice Chairman Adams Oloo defended the proposal to upgrade the city county, saying it was informed by it being the country’s headquarters.
“Nairobi is the capital city and the nerve centre of all government activities. We have all governors having liaison offices in Nairobi, the national Parliament and the United Nations headquarters among others,” said Prof Oloo.
“It has also international territory and represent vast interests. The county has been grappling with governance and leadership issues, which should be addressed through this special status.”
Oloo said the proposals do not in any way interfere with the structure of the counties and the leadership will remain intact.
“The governor, senator and members of the County Assembly will remain,” he said.
Nairobi County continues to receive the largest allocation since the inception of devolution in 2013, but is marred by claims of mismanagement.
In March, governor Mike Sonko entered into a Deed of Transfer with the national government to transfer five functions to the Nairobi Metropolitan Services (NMS).
They include health services, transport services, public works, utilities and ancillary services and government planning and development.
Article 187 of the Constitution stipulates: “A function or power of government at one level may be transferred to a government at the other level by agreement between the governments if it would be more effectively performed or exercised by the receiving government.”
Though the transfer is not prohibited by the legislation under which it is to be performed or exercised, arrangements shall be put in place to ensure the resources necessary for the performance of the function or exercise of the power are transferred.
However, there is a lacuna in law on the transfer of resources to NMS and oversight by the County Assembly as stated by MPs during the debate on the County Allocation of Revenue Bill (CARB) 2020.
The National Assembly stated that there should be a legal framework for transfer of funds from the County Revenue Fund to NMS.
The National Treasury has also declined to release funds to NMS for payment of salaries of staff seconded from City Hall.