Polycarp Igathe’s announcement that he would resign as deputy governor triggered a myriad of challenges and conspiracy theories.
In fact, Igathe’s planned departure, and the anxiety this brought to Nairobians, sent the Nairobi Metropolitan Area Transport Authority Bill into the limelight.
This bill, tabled in Parliament in October 2017, materialises the existing tension between counties and the national government, between devolution and centralisation. The matter is complex.
For the longest time, since independence, Kenya has lived in constant tension — a power play between the central government and the regions.
On the one hand, there is an earnest desire for devolving power to the people. On the other, the central government tends to absorb all powers, taking them away from the people. It is a kind of temptation presidents and their collaborators find hard to avoid.
'AFRICANNESS OF THE PRESIDENCY'
Our independence Constitution had provided for a federate type of government, decentralised. It also had rigid amendment procedures, with both houses of Parliament having to attain relatively high thresholds.
Yet, it was so severally amended, twisted and mutilated that by 2010 it had become a blur shadow of what was negotiated and passed in 1963. It was not by chance that most of its 39 amendments aimed at concentrating powers in the President’s hands.
This could have been a good thing had it not been so abused. The first amendment to the independence Constitution was tabled in Parliament less than a year after independence. A few days later, a second amendment was also tabled. One after another, they were concentrating powers on the executive.
Prof Ben Nwabueze defined this phenomenon as the “Africanness of the presidency”; an almighty presidency which was free from limitations, checks and balances, and restraint mechanisms. Then, things became tough and rough for any divergent politician.
LACUNAE AND AMBIGUITIES
To prevent a repeat of past abuses, the 2010 Constitution went through a truly consultative process. The drafters wanted to avoid non-consultative changes. They set out a rigid constitutional amendment framework.
However, in such a long and complicated document there were lacunae and ambiguities that are resurfacing slowly and surely.
Big changes begin with little things. And these ambiguities could open the floodgates for bigger and more radical changes.
One example is the Fourth Schedule of the 2010 Constitution. Part I, 18 places these functions under the care of the national government: transport and communications, including, in particular, (a) road traffic.
Part II, 5 of the same Schedule grants counties authority over county transport, including, (a) county roads; (c) traffic and parking; and (d) public road transport.
Clearly, the same function was somehow given to both counties and the national government. The rationale was that the county would control its own roads, parking and traffic while the national government would coordinate and manage inter-county relations and systems.
MELTING POT OF INHABITANTS
Nairobi is a melting pot of inhabitants from at least four counties. Many of us cross county boundaries every day to and from work.
Section 6 (1) of the Nairobi Metropolitan Area Transport Authority Bill establishes an agency appointed by the president to oversee the Nairobi transport system. It reads, “The Authority shall oversee the establishment of an integrated, efficient, effective and sustainable public transport system within the Metropolitan Area.”
This bill also creates a council that brings together “the Cabinet Secretary responsible for Transport, as chairperson; the Cabinet Secretary responsible for the National Treasury; the Governor of Nairobi City County; the Governor of Kiambu County; the Governor of Machakos County; the Governor of Kajiado County and the Governor of Murang'a County.”
SOMETHING ESSENTIAL MISSING
As much as we may like this bill, there is something essential missing here. This bill ignores the fact that transferring powers between levels of government must be done in accordance with Article 187 of the Constitution.
This article says:
“(1) 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— (a) the function or power would be more effectively performed or exercised by the receiving government; and (b) the transfer of the function or power is not prohibited by the legislation under which it is to be performed or exercised. (2) If a function or power is transferred from a government at one level to a government at the other level— (b) constitutional responsibility for the performance of the function or exercise of the power shall remain with the government to which it is assigned by the Fourth Schedule.”
The Nairobi Metropolitan Area Transport Authority Bill could still be salvaged. Its destiny depends on a formal declaration from the five affected counties, stamping their agreement to the passing of this bill for the purposes of cooperation, harmonisation and development.
Unless the assemblies of those five counties agree to work with the national government, this bill will have an unconstitutional taste…the bitter taste of usurped powers.
Though Kenya has changed, the threat to Africanise again our presidency has not gone away. This tension is here to stay, and I pray that this bill may not be the trigger to undermine the gains devolution brought to us.
We need to resolve our traffic nightmare; we need better coordination, and this bill is a step in the right direction. But we need to do it well. Otherwise the matter will end up in court, and we will naïvely end up blaming the Judiciary for Nairobi’s ‘trafficmare’.
Dr Franceschi is the dean of Strathmore Law School. [email protected]; Twitter: @lgfranceschi