Why Nairobians Felt Betrayed After the Transfer of Nairobi County Key Functions To The National Government: Sen Murkomen Explains.

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MOTION OF ADJOURNMENT ON THE PURPORTED TRANSFER OF CERTAIN FUNCTIONS OF THE NAIROBI CITY COUNTY GOVERNMENT TO THE NATIONAL GOVERNMENT

SPEAKING NOTES FOR THE SENATE MAJORITY LEADER, SEN. KIPCHUMBA MURKOMEN

Mr. Speaker Sir,

As Honourable Senators are aware, yesterday, 25th February, 2020, in the afternoon, the nation was informed, through a Press Statement by the Office of the Spokesperson, State House, Nairobi, that in an agreement signed at State House on 25th February, 2020, by Governor Mike Mbuvi Sonko and Devolution Cabinet Secretary Eugene Wamalwa, with the concurrence of His Excellency the President, certain functions of Nairobi City County Government had been transferred to the National Government pursuant to Article 187 of the Constitution. The Press Statement further indicated that the National Government would take over the following functions of the Nairobi City County Government-

County health services;
County transport services;
County public works, utilities and ancillary services; and
County Government planning and development.

The Press Statement stated that this was intended to ensure that Nairobi City County residents received efficient services and that it came as a breakthrough in the running of County services that had ground to a halt.

Mr. Speaker Sir,

As Honourable Senators are also aware, Gazette Notice No. 1609 dated 25th February, 2020 was published seeking to give effect to the transfer of functions of the Nairobi City County Government to the National Government. The Gazette Notice notifies the public that pursuant to Article 187 of the Constitution as read with section 26 of the Intergovernmental Relations Act, 2012, the Nairobi City County Government has transferred certain functions to the National Government vide the Agreement set out in the Schedule to the Gazette Notice. The Schedule sets out the Deed of Transfer of Functions from the Nairobi City County Government to the National Government.

Mr. Speaker Sir,

The Gazette Notice communicating the purported transfer of the functions of the Nairobi City County Government to the National Government raise weighty and grave questions of a constitutional and legal nature, particularly in the context of the devolved system of governance that is a key cornerstone of our Constitution. Honourable Senators are aware that in the short time since the issuance of the Press Statement, Kenyans have raised many questions on the constitutionality, legality and effect of the purported transfer of the functions of the Nairobi City County Government to the National Government. As the House of the Parliament that is charged with the constitutional mandate of securing and safeguarding the devolved system of governance, representing the counties and protecting the interests of the counties and their governments, this is a matter that falls squarely within our mandate and on which the Senate needs to move with haste in order to give clear direction on the matter.

Mr. Speaker Sir,

The Constitution at Article 186 as read together with the Fourth Schedule sets out the respective functions and powers of the national and county governments. Article 187 of the Constitution contemplates a situation where a function or power at one level may be transferred to a government at the other level by agreement between the governments. This Article and Part III of the Intergovernmental Relations Act, 2012 provide detail, on amongst others, the conditions to met before such a transfer, the criteria for such transfer and the procedure that is to be followed in the processing of a transfer.

Mr. Speaker Sir,

It is important at the very outset that we understand that the effect of the purported transfer of the four functions from the Nairobi City County Government to the National Government is basically that the National Government will have taken over more than 80% of the functions of the Nairobi City County Government. A closer scrutiny and unbundling of each of the functions clearly reveals this. In the case of the county health services, the transfer would include-
county health facilities and pharmacies;
ambulance services;
promotion of primary health care;
licensing and control of undertakings that sell food to the public;
veterinary services;
cemeteries, funeral parlours and crematoria; and
refuse removal, refuse dumps and solid waste disposal.

In the case of county transport services, the transfer would extend to-
county roads;
street lighting;
traffic and parking;
public road transport; and
ferries and harbours.

County planning and development services would include- and the extent
statistics;
land survey and mapping;
boundaries and fencing;
housing; and
electricity and gas reticulation and energy regulation.

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The fourth function that is purported to be transferred, county public works and utilities and ancillary services, extends to storm water management systems in built up areas and water sanitation services.

The specificities of each of these functions illustrates the full extent and magnitude of the purported transfer of the functions of Nairobi City County Government. It is clear that should the transfer take effect in the manner anticipated in the Deed, the Nairobi City County Government shall remain a shell with minimal functions to perform.

Mr. Speaker Sir,

Allow me at this juncture to highlight some of the questions that arise in respect of the purported transfer of functions from the Nairobi City County Government to the National Government in light of these provisions of law that require the attention of the Senate.

The first relates to public participation. Public participation is a key pillar and recurring theme in our Constitution. Article 10(2) of the Constitution provides for various values and principles of governance that speak to the matter of public participation, including participation of the people, transparency and accountability. Article 10(1) further provides that these values and principles of governance bind all State organs, State officers and all persons whenever any of them applies or interprets the Constitution or makes or implements public policy decisions. On account of these provisions of the Constitution, which have time and again been reinforced through court decisions, public participation has become pivotal in the execution of public functions.

Mr. Speaker Sir,

It is therefore completely baffling and unfathomable that despite the express requirements of the Constitution, the purported transfer of functions from the Nairobi City County Government to the National Government was conducted in an entirely opaque manner with no reference whatsoever to the public generally and in particular to the people of Nairobi City County. This is a complete claw-back on the principle of public participation that is so dearly held by Kenyans at large. Even more worrying is the total lack of observance of section 29 of the Intergovernmental Relations Act, 2012, which specifically provides for public participation in the process of transfer of functions or powers from one level of government to another.

The Deed of Transfer of Functions at Article 10.1 and 10.2 makes a rather interesting, passing and casual reference to public participation. Article 10.1 provides that the Deed of Transfer of Functions shall be notified to the Nairobi City County Assembly pursuant to section 26(6) of the Intergovernmental Relations Act and shall in the meantime be subjected to public participation. Article 10.2 then provides that the Deed together with any amendments as may be necessitated by public participation constitute the entire Agreement between the Parties. Pursuant to section 29 of the Intergovernmental Relations Act, 2012, it would have been expected that public participation would have been carried out prior to the execution of the Agreement. However, this was not the case. Article 10.1 and 10.2 of the Agreement appear to be an attempt on the part of the parties to sanitize an already flawed process.

These provisions, Mr. Speaker, are a total affront to the people of Kenya. The Deed was executed yesterday, 25th February, 2020. The views of the public are now sought on a Deed that has already been executed. In effect, the people of Kenya have been denied the opportunity to decide, at the outset, whether or not the functions of the County Government should be transferred to the National Government. A reading of Article 10.2 indicates that decision in this regard has already been made on their behalf and that all they can hope to do is to propose amendments to an existing agreement. The people of Kenya were further denied the opportunity to determine, at the outset, amongst other things, the scope of the functions to be transferred, the duration of the transfer and the financing framework. To say that the Agreement contravenes the provisions of the Constitution and the law with respect to public participation is an understatement. It is a total ambush on the people of Kenya and in particular, the residents of Nairobi City County who, as is required by the Constitution and the law, should be at the centre of determining questions relating to a proposed transfer of functions from one level of government to another.

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Mr. Speaker Sir,

The second issue concerns the processing of the Deed of Transfer of Functions. The Deed indicates that it was executed by Eugene Wamalwa, duly authorized as the Cabinet Secretary, Ministry of Devolution and the ASALS and Mike Mbuvi Sonko and Justus Kathenge as duly authorized signatories for Nairobi City County Government. A fundamental question arises concerning the processes antecedent to the execution of the Deed at both the National and County levels of Government. The transfer of functions and powers contemplated under Article 187 of the Constitution and Part III of the Intergovernmental Relations Act is one between the National level of Government and the County level of Government. Accordingly, before the execution of a deed seeking to give effect to such transfer, the approval of the county government would be required. The question that then arises is what is the county government? Is the unilateral approval and execution of a deed by a governor sufficient to constitute the approval of a County Government? This cannot be the case.

Under Article 176 of the Constitution, a County Government consists of its county assembly and its county executive. Consequently, before a decision as serious as that of transferring the functions of a County Government to the National Government is taken it would be expected that the proposed transfer of functions would be processed and approved through the County Government organs. It is through such processes that the requirements of public engagement and public participation would be met as the processing would be conducted in an open and transparent manner, particularly through the duly elected representatives of the people sitting in the county assembly.

Mr. Speaker Sir,

What we witnessed yesterday in the form of the Deed executed by Govenor Sonko does not in any way comply with Article 187 and Part III of the Intergovernmental Relations Act. The execution of the deed was a unilateral decision that does not appear to have been taken by the County Government. The purported execution of the Deed by Governor Sonko is therefore not an act that speaks for and represents the wishes of the people of Nairobi. In this regard, it is therefore unconstitutional and illegal for non-compliance with the law.

Mr. Speaker Sir,

The same threshold for the processing of a proposed transfer of functions would, in equal measure, apply at the National level of Government. It cannot be that the Cabinet Secretary for Devolution and ASALS would sign a deed of transfer of functions without similar processing through the executive and legislative branches of the National Government.

While still on the question of the process followed in the processing of the Deed for the Transfer of Functions, allow me to pose some critical questions which have yet to be addressed-

Who were the negotiators involved in the process from both the National and County Governments?
How long did the negotiators take in the negotiation process?
Was the public at any point made aware of these negotiations and of the plans towards the transfer of functions?
Did the Cabinet approve the transfer of functions?
Did the County Executive Committee similarly approve the transfer of functions?

Mr. Speaker Sir,

The third issue that I wish to raise relates to the conditions and criteria for the transfer of functions from one level of government to another. Article 187 of the Constitution requires that a function or power may be transferred from one level of government to another if the function or power would be effectively performed or exercised by the receiving government. In other words, there would require to be sufficient justification for the transfer of each function or power from one level of government to another.

As I observed earlier, the Deed transfers the four functions cited as a block without regard to the specific functions and powers under each of the four major heads, which are set out in the Fifth Schedule to the Constitution, and which are 19 in total. The Deed, in total disregard Article 187 of the Constitution, does not provide specific justification for the transfer of each of these 19 functions and powers.

Mr. Speaker Sir,

The fourth issue that requires the attention of the Senate relates to the oversight mandate of both the Nairobi City County Government and the Senate with regard to the functions that are purported to have been transferred, more so in light of the fact that more than 80% of the functions of the County are sought to be transferred. Several questions arise-

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What is the role of the Nairobi City County Assembly in oversighting the functions that have been transferred to the National Government?
Related to that: What is the role of the Senate in the oversight of those functions?
Who is the accounting officer responsible for the execution of the functions that are sought to be transferred?
Having transferred the large majority of the functions of the Nairobi City County Government, do we then need a Governor for that County? Do we require a County Executive Committee, and significantly what is the fate of Committee members and their staff responsible for the functions that are sought to be transferred? Do we need a County Assembly? What role remains for the County Assembly to perform?

These are important questions that require to be addressed.

Mr. Speaker Sir,

The fifth issue that I wish to raise relates to revenue collection. The Deed at Article 5.5 provides that for the purposes of general coordination of revenue collection, the Nairobi City County Government appoints Kenya Revenue Authority (KRA) as the principal agent for overall revenue collection. Article 187 of the Constitution and Part III of the Intergovernmental Relations Act contemplate that the matters to be contained in the Deed would relate to the transfer of functions between the levels of government. It is not clear why the matter of revenue collection has been provided for in the deed more so because this is not a function that is sought to be transferred. This is an arrangement that the Nairobi City County Government should put in place outside of the ambit of the Deed of Transfer of Functions.

Mr. Speaker Sir,

The sixth and final issue relates to dispute resolution which is provided for under Article 11 of the Deed. Article 11.2 in particular, provides that where a dispute arising cannot be resolved amicably through negotiations, the parties shall refer the dispute to the National and County Governments Coordinating Summit.

It is doubtful that the Summit would be the appropriate forum for resolution of such a dispute as the parties to the dispute are both members of the Summit. There would need to be a dispute resolution framework that ensures that any emergent disputes are conclusively addressed.

Mr. Speaker Sir,

As I conclude, allow me to make some observations. There is an emerging pattern where County Governors are arrested, charged in court for various offences, barred from office and subsequently impeached. It is now evident that this has now moved to the next level where the functions of a County Government can be largely, and more or less in whole, transferred to the National Government so that the County Government is literally left as a shell with no functions to perform. The effect of this is that it provides a hitherto unknown method for the winding up of County Governments.

This is a situation that the framers of our Constitution would not have envisaged. Indeed even two years ago, we would not, as the Senate, have imagined that we would today be faced with a matter as serious as this. The future of devolution is in jeopardy. It is time for the Senate to take leadership on this matter. I urge that in considering this matter we do not think of those presently holding various offices, including the offices of the President and the Governors. Let us deal with the matter with a focus on the primary objective of safeguarding the devolved system of government.

Mr. Speaker Sir,

If ever there was a time for action and vigilance by the Senate, this is the time. I call upon you, Mr. Speaker, to urgently refer this matter to the joint consideration of the Committee on Devolution and Intergovernmental Relations and the Committee on Justice, Legal Affairs and Human Rights for urgent consideration and for reporting back to this House within 10 days. This, Mr. Speaker, will enable the Senate to chart a clear way forward on the matter that will safeguard not just the interests of Nairobi City County but of County Governments as a whole.

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