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ILLEGAL USURPATION OF MANDATE: WHY UHURU SONKO DEAL IS BAD IN LAW

By SENIOR COUNSEL STEVE OGOLLA

PREAMBULAR QUOTE:

The Nairobi County Government is not an agent of, or subservient to the National Government, also sitting in Nairobi.

The framework for consultation and cooperation between the national government and the Nairobi City County Government must be based on the shared understanding that the relation must respect the functional and institutional integrity of the two distinct levels of government.

THE NAIROBI REGENERATION PROJECT (NRP)

The President chaired a meeting in which the team behind the NRP promised to resign if they failed to deliver the ambitious goal of transforming Nairobi.

THE MANDATE

The team is “co-chaired” by Governor Sonko, and Tourism CS, Najib Balala. The team pledges ambitious timelines for the delivery of “key services” ranging from garbage collection, automation of bus termini services, equipping high volume health centres, affordable housing, launching car free days in Nairobi, and youth market days.

THE PROBLEM

A legal inquiry into the constitutional justification for the cooperation between the National Government and the Nairobi City County Government reveals a clandestine attempt at usurpation of powers and functions of Nairobi County Government, and illegally reassign them to the national government.

LEGAL ANALYSIS

The Constitution

The Constitution, in terms of governance, is the law that seeks to define, distribute, and constrain the use of state power, so that power is applied to the objectives for which it was invented, and IN THE MANNER in which it was intended.

The Constitution has intended that county governments remain distinct from the national government, while maintaining a level of interdependence.

The distinctness finds the pride of place in the Fourth Schedule where the Constitution assigns respective functions to the two levels of government.

In the performance of these functions, the county governments are not subject to direction, control or influence of the national government.

Article 189, unequivocally states that the government at either level shall perform its functions in a manner that:
~respects the functional and institutional integrity of either level; and
~respects the constitutional status of institutions of government at either level.

The functional mandate of the NRP Team obviously usurps powers and functions for which only the county government is constitutionally responsible for. That the CS Balala “co-chairs” this Team on behalf of the President, is itself a mysterious decision indefensible in law.

The interdependence envisioned by the Constitution is not intended to envelope exclusive functional areas of county governments.

Article 6(2) binds the governments at national and county level to conduct their mutual relations on the basis of consultation and cooperation.

Further Article 189(2) provides that government at each level shall cooperate in the performance of their functions, and may set up joint committees.

However, these provisions pressupose that the “consultation and cooperation,” and any resultant committee, be restricted to the “concurrent or shared functions.” Even so, such cooperation or committee is by law required to be comprised of persons whose portfolios are responsible for the shared service delivery.

How the Tourism CS should chair a team whose mandate does not involve national or shared functions, and even making the charitable assumption that “housing” and “healthcare” are the pathways for his entry, how will he account to Parliament on the discharge of functions not within his docket?

Similarly, the NRP Team appointed by the national government are usurpers and violators of the Constitution, in an attempt to weaken and kill the order and practice of devolved governance in Nairobi.

The Urban Areas and Cities Act No. 13 of 2011

This Act requires the national government to enter into agreement with the Nairobi City County Government regarding the performance of functions and delivery of services by the Capital City.

Instructively though, is Section 6(2) which provides that the Capital City shall be governed and managed in the same manner as a county government.

This means that the governance and management of Nairobi City must respect the constitutional status, and functional independence of Nairobi County Government.

Inescapably, accountability for beneficial leadership, service delivery, inclusiveness, and institutionalized public participation is vested in the Nairobi County Government, and not the national government, save for the concurrent functions, which is a shared responsibility.

The Intergovernmental Relations Act No. 2 of 2012

This law provides a detailed framework for consultation and cooperation between the national government and the county governments.

The structures under the Act include the Summit, Intergovernmental Relations Technical Committee, and Sectoral Working Groups. It is not known to what extent the NRP Team, barring its unconstitutionality, has or will leverage on the existing structures ordained by law.

Importantly, Section 4 of the Act reestablishes one of the cardinal principles of intergovernmental relations: respect for functional and institutional integrity of the two levels of government.

The Act rejects chaotic expansion of mandate and, and outlines a framework for intergovernmental dispute resolution.

Nairobi County Government should have rejected overt attempts by national government to outmaneuver constitutional limitations in order to undermine its functional independence. The national government cannot pretend to care for Nairobi County Government beyond what the Constitution has required, and in a manner that is obviously harmful to the architecture and design of governance.

PREDICTABLE PATHWAY FOR INNOVATION WITHIN THE LAW

Article 186 of the Constitution provides respective, concurrent and residual functions. Respective functions are the exclusive mandates of either level of government to which a short list is provided. Concurrent functions are subject to interpretation and functional overlaps. Residual functions are exclusive national functions.

Article 187 provides a mechanism for the transfer of functions. Therein lies the opportunity for Governor Sonko to enter into a “transfer agreement” if he feels the functions of garbage collection and disposal, infrastructural facilities such as roads, street lighting, markets, fire stations, disaster management, and storm drainage would be more effectively performed by the national government.

The alternative, is to enter into a “cooperation agreement” with the national government to provide technical support to his core team in the executive committees.

Ultimately, however, Governor Sonko must remember that whichever way he goes, the constitutional responsibility for the performance of the functions of the Nairobi City County Government falls on him.

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