The captain of a football team is the team. Similarly, a county governor is the county. This is in effect what we were told when the Nairobi governor purported to surrender powers and functions of the county government to the national government. The narrative was that this would ensure service delivery to Nairobians. Article 187 of the constitution was quoted as the enabling law: “A function or power of government at one level may be transferred to a government at the other level by agreement between the governments.”
The key and compulsory condition set out here is “agreement between the governments”. The Oxford English dictionary defines agreement as “the state of sharing the same opinion or feeling”. Was there an agreement between the Nairobi County government and the national government? What is a government? Oxford describes government as “the group of people with the authority to govern a country or state” and also as “the system by which a state or community is governed”.
The Constitution is even clearer under Chapter 11 on the Devolved Government. Article 176(1) says, “There shall be a county government for each county, consisting of a county assembly and a county executive.” In light of the foregoing, the “landmark agreement” signed at State House between Governor Mike Mbuvi Sonko and Devolution Cabinet Secretary Eugene Wamalwa clearly did not satisfy the constitutional condition.
Was this a systemic decision made by the group of people with authority to govern the county? The Nairobi governor purported to single-handedly constitute in its entirety the entity referred to in the Constitution as the county government.
The governor as an individual is not the county government. If the county government is a football team, the governor is the captain. Obliged to parley with teammates to deliver what would be deemed a team decision. The team the Constitution refers to as county government certainly did NOT come to a consensus or collective conclusion, since it was not involved.
By acting without due consultation or engagement of the county assembly, abandoning the agreement, approval and authentication these organs would have provided, the governor acted alone and out of hand. There was therefore no agreement between the governments as required by Article 187.
What cannot be denied is that there was a capricious connivance between Mike Mbuvi Sonko and the national government, considering the signing of the agreement was also witnessed by the Speaker of the Senate, Kenneth Lusaka and Attorney-General Paul Kihara – two legal experts to whom even a perfunctory examination of the Constitution would make obvious the inherently illicit character of the manoeuvre.
The fact that Nairobi county was delivering poor services can never be reason enough to subvert a constitutional requirement. The governor is not even regularly holding office. He is barred by court order from accessing his office. This is the core precipitate of the city service delivery crisis.
It is not a reasonable expectation that a governor or other office holder who is barred from accessing office would continue with the ordinary and regular exercise of the functions of such an office.
The Constitution just does not envisage a situation where the governor is emasculated while the office of deputy governor is vacant. The transfer of powers and responsibilities was legally untenable in the prevailing circumstances. It is in this lacuna that the national government acted in breach of the Constitution to usurp power and functions from Nairobi County. Ironically, the statement from the President’s office referred to “a breakthrough”. A smash-and-grab breakthrough.
Ms Boss is Uasin Gishu Woman Representative.