Tuesday’s takeover of key functions of the Nairobi County government by the national government is flawed and legally defective, constitutional experts say.
Moments after President Uhuru Kenyatta and Nairobi County Governor Mike Sonko signed a deal that effectively transfers some of the city’s key functions to the national government, legal experts gave their views on the takeover and possible repercussions of the deal.
According to the transfer deed, county health services, transport, planning and development and public works and utilities will now be under the national government for two years.
Devolution Cabinet Secretary Eugene Wamalwa will guide the implementation of the deal.
While some experts argued the deal was rushed, others detailed the legal conundrums surrounding takeover.
Senate Majority Leader Kipchumba Murkomen termed the transfer of functions from Nairobi County to the State a ‘‘weighty matter that requires deep reflection’’.
‘‘I will be making a comprehensive statement in the Senate tomorrow and this matter will occupy most of our debating time tomorrow,’’ the Elgeyo Marakwet senator said in a tweet.
Murkomen’s onslaught in January to block the impeachment of Kiambu Governor Ferdinand Waititu flopped when he failed to rally the house he leads. Senate would vote 28 against 11 to kick out the governor who is facing charges of corruption and misappropriation of county funds.
It remains to be seen what stand the Senate will take when it convenes this afternoon to discuss the matter.
Meanwhile, advocate Steve Ogolla opined that Sonko was ‘‘truly fit for removal’’ adding that ‘‘to argue otherwise is to defer the reality’’.
‘‘The way to reconstitute Nairobi County government is by way of impeachment of the governor (Article 181) or suspension of the county (Article 192),’’ tweeted Ogolla, warning that the Law Society of Kenya (LSK) would not ‘‘permit dubious manoeuvre and illegal takeovers’’.
Governor Sonko is facing multiple charges of corruption and loss of more than Sh357 million from the city coffers.
Several efforts to impeach Sonko have collapsed after the governor employed underhand tactics to evade his ejection.
Failure to appoint a deputy governor after the resignation of Polycarp Igathe in December 2018 has rendered him nearly unimpeachable.
Two weeks ago, the city boss convened a meeting at his Upper Hill private office to strip Nairobi County Assembly of quorum during the impeachment motion against him.
'GOOD AS DISSOLVED'
Makueni Senator Mutula Kilonzo Junior said that Nairobi County government was ‘‘as good as dissolved’’ following the move. Mutula also seemed shocked by the presence of Senate Speaker Kenneth Lusaka during the signing of the deal.
‘‘Speaker of Senate! Swala nyeti (critical matter),’’ Mutula said in a tweet as soon as the news broke.
Reacting to the deal, constitutional lawyer Peter Wanyama noted that by rushing the handover process, Sonko had disregarded the law.
‘‘The decisions may have been made for political convenience, but they must meet the legal test,’’ Wanyama argued, noting that such a move must observe a six steps procedure, failure to which the entire process is illegal .
According to the lawyer, Attorney General Paul Kihara had misled the government on the takeover.
‘‘What happens to the CECs who are responsible for these dockets?’’ he wondered.
He further noted that owing to the weighty nature of the matter, public participation was necessary, and possibly a county-specific referendum where residents of Nairobi vote on the matter.
But Machakos governor Alfred Mutua supported the takeover, saying it does not threaten devolution.
According to Dr Mutua, Governor Sonko had brought it on himself.
"The move was necessitated by flaws and the failure by Nairobi to run as a strong county, considering that it is the capital of the country," said Dr Mutua at the Kenyatta International Convention Centre (KICC).
He cited the failure by the governor to appoint a deputy following the resignation of Polycarp Igathe in January 2018.
The appointment of Ms Anne Mwenda early this month has been halted by the courts.
"If Sonko had a deputy, that would be the person running the show when he is out," he said.
Dr Mutua said Mr Sonko had voluntarily agreed to the deal.
"Sonko himself asked for help. He went to State House on his own, and when I saw him during the signing ceremony, he didn't seem like a man forced to sign anything," said Dr Mutua in Nairobi.
Some Nairobians agreed with the Maendeleo Chap Chap party leader.
Enumerating some of the multi-billion shilling scandals that have happened under the Jubilee government, Nairobi resident Steve Martin argued that the city will not fare any better under the national government.
‘‘Even after Sonko surrenders Nairobi is doomed,’’ Martin said.
Another Twitter user Muthui Mkenya argued that by handing over Nairobi County (functions) to the national government without consulting Nairobi residents, Governor Sonko had conceded his failure to lead the county.
‘‘Sonko should do the honourable thing and step down. Nairobi is bigger than his political ambition,’’ Muthui said.
Westlands MP Tim Wanyonyi said Mr Sonko was incapable of running the county, and that what he did yesterday was a completion of what he had started a long time ago.
‘’I remember when we were launching the express highway, Sonko stood up and in the presence of the president, said that he was reverting the functions of the city country government to the central government. Whatever they signed yesterday had happened a long time ago.’’
But Mr Wanyonyi termed the move as a devolution function, saying it is only a referendum that will ensure Nairobi county government is reinstated to the central government.
‘’If we remove Nairobi, we must go to a referendum to vote that Nairobi goes back to the central government, because that will amount to amending the constitution.’’
The MP called upon Nairobians to wake up and reclaim the city, claiming the county has suffered for too long.
‘’As leaders of Nairobi, we are going to sit down and engage with the national government on this. I hope it is just a temporary measure to reorganize the activities of the county, then hand over the county functions to the county government.’’ He said.
‘’That is a devolution function, and we cannot allow Nairobi county to be taken over.’’ He added.
The MP was accompanied by Dagoretti North and Kibera members of parliament, Mr Simba Arati and Imran Okoth, with Mr Arati complaining that the lack of public participation before the handing over was wrong and a show of disobedience to the law.
‘’Just because Sonko is facing graft charges doesn’t mean the county should be taken over by the president, said Mr Arati.
Separately, Kenya Tuitakayo Movement (KTM), a civic coalition, termed the action as “illegal and shameful attack on the constitution.”
They are threatening a law suit against the government.
“We interpret this assault of the constitution as an attempt to alter the character and nature of government as provided for by the constitution. That any attempt to establish a government otherwise than in compliance with the constitution is unlawful,” said Rose Oguba, a co-convener of KTM.
According the group, Gideon Mbuvi, who participated in the handing over of some roles of the County Government to the National Government, in the presence of the Speaker of the Senate, Devolution CS and the President at Statehouse, is not in a capacity to enter into an agreement with the National Government as the County Government of Nairobi.
The movement says, he [ Mike Sonko], is but a member of the of the County Government and the County Assembly of Nairobi has never discussed the matter nor the executive.
A statement to newsrooms read, “There’s no evidence that the County Assembly of Nairobi had transmitted agreement instruments in the transfer of functions. Further, there’s no evidence that the County Assembly of Nairobi considered the matter of entering into agreement with the National Government.”
The lobby holds that public participation, in such an issue that Nairobi residents, should have been considered.
“We believe the principles of good governance and public policy were offended,” said Francis Kuria.
Reported by James Kahongeh, Patrick Langat, Mercy Chelangat, Hellen Shikanda and Daniel Ogetta.