On February 25, 2020, Nairobi Governor Mike Sonko surrendered key functions of the devolved unit to the National Government.
These functions include:

i) County Health services
ii) County Transport services
iii) County Public Works, Utilities and Ancillary services
iv) County Government Planning and Development

To actualize the transfer, Sonko signed the transfer with Devolution CS Eugene Wamalwa. The signing of the agreement was also witnessed by the Speaker of the Senate, Kenneth Lusaka and the Attorney General Paul Kihara.

Kenya Tuitakayo Movement (KTM), a civic coalition working to build a citizen-led movement towards transformative change in the country – and which MUHURI is a member, released a statement on February 26, 2020, raising legal concerns over the deal.
Here is the statement:

Statement

We are greatly disturbed by the unconstitutional and illegal action by the National Executive and/or the National Government attempts to take over key functions of the County Government of Nairobi.

The Executive and the National Government has shown disdain for the constitution, the rule of law, and lack of respect for the people. It is very shocking to us that members from this branch of government would try to pull off such an unlawful and shameful attack on the constitution.

We interpret this assault on the constitution as an attempt to alter the character and nature of government as provided for by the constitution. The Constitution outlaws such manoeuvres by providing in Article 3 (2) as follows: Any attempt to establish a government otherwise than in compliance with this constitution is unlawful.

We are cognisant that many players in the executive branch of government did not support this constitution and have been waging a silent war against it.

We are also aware many important institutions and actors inside and outside government have been compromised and/or co-opted into a conspiracy of silence and selfish acceptance, too scared and bargained to offer any resistance and come to the defence of the constitution.

We will oppose this latest attack on devolution and the constitution. This is our solemn duty under the constitution.

Why we oppose this unconstitutional action

1. This action is not permitted by the constitution.

Article 187 (1) of the Constitution provides: A function or power of government at one level may be transferred to a government at the other level by agreement between governments.

We hold the view that the February 25, 2020, Nairobi takeover was not an agreement between governments. The Constitution defines what are county governments in article 176 in the following terms: 176 (1) There shall be a county government for each county, consisting of a County Assembly and a County Executive.

Nairobi Governor Mike Sonko is not the county government. He is but only one member of the county executive. We also hold the view that Governor Sonko cannot enter into an agreement with the national government as the county government of Nairobi.

There is no evidence that the County Assembly of Nairobi had transmitted agreement instruments in the transfer of functions. Further, there is no evidence that the County Assembly of Nairobi transacted and/or considered the matter of agreeing with the national government, or they did that in conformity with the constitution.

The truth of the matter is that the County Assembly has never considered this matter at all. Similarly, there is no evidence to show that the County Executive considered this matter, or even prepared the requisite instruments. The truth of the matter is that the County Executive has not considered this matter at all.

We are willing and able to demonstrate in a court of law that these important institutions of the County Government were not involved in this subterfuge and the constitution was violated.

Further, we hold the view the constitution does not contemplate multiple and/or wholesale transfer of functions that circumvent the purpose of devolution and make county governments irrelevant.

More importantly, the transfer of functions in the constitution is conditional, based on the principles of devolved government and on the condition that the function or power would be more effectively performed by the receiving government.

We hold the view that:

2. The critical constitutional principle of public participation was not undertaken. We are able and willing to demonstrate before a court of law there was no people’s participation in considering the transfer of Nairobi County Government functions to the national government.

3. Principles in Article 10(2) of the Constitution were not followed in the purported transfer. Based on this fact, we believe the principles of good governance and public policy were offended.

4. The purported agreement is not in conformity with the values, design, and architecture of the constitution. It undermines and offends the integral structure of the constitution.

5. Governor Sonko is constrained to transact the business of his office, let alone being involved in the purported transfer of functions, by the terms and conditions of his bail. It is very disturbing that an accused person facing serious corruption charges can be seen negotiating and/or claiming to be signing what we consider an illegal agreement with top members of the National Executive and/or members of the national government. What message is being sent to the nation?

6. The presence of the Speaker of the Senate in a questionable process that has the potential of undermining the devolved system was also very troubling. What will happen if this process is challenged in the Senate?

We recall how the independence Constitution was mutilated and replaced with a single-party dictatorship. We will resist at all cost any attempts to return us to the dark oppressive old days.  The efforts to decentralize power and the killing of devolution has become the legacy of the “UhuRuto” administration.

We note that:

1. The equalization funds have never been disbursed to counties.
2. A schedule of transfer of services was never completed by the TA before it was disbanded and therefore we have had counties expected to do some functions in health, agriculture and technical training while the national government still holds the money, and proceeds to plan implementation like is the case with technical training institutes in the TIVET process.
3. We have noted that the national government still procures for the county government functions – the best example is the case of health equipment and universal healthcare infrastructure.
4. We are aware that the national government has refused to build the capacity of county governments to exercise their functions. This has caused disrepute about functioning, deliberate action to justify take over.
5. We know that the national government is controlling the budgets and plans of county governments through administrative action, especially by circulars from the Treasury which have had the effect of making county appendages of the national government.

This is unacceptable and must stop. Devolution must be protected from the predatory actions of the national government.

The hijacking of Nairobi is for personal gain and we are sure it is related to the question of expiring leases of commercial land and properties, and to the development of the projects of the Kenyatta family – including the Northlands City.

Conclusion

We are committed to confront and defeat this unconstitutional and illegal attempt to further undermine the devolved system of government. Such a precedent cannot be allowed to stand.

We will also start a process of direct citizen actions that are permitted by the constitution to confront those who are determined to undermine our constitution and the rule of law.

The people of Kenya are sovereign!

God help Kenya.

Editor’s note:

Kenya Tuitakayo Movement (KTM) is a civic coalition working to build a citizen-led movement towards transformative change in the country. KTM’s work is anchored in a charter that sets out a 10-point agenda whose implementation will significantly transform the governance situation in Kenya. MUHURI is a member of KTM.