State-Nairobi County deal must work for residents

By People Daily
Friday, February 28th, 2020
Constitution of Kenya. Photo/Courtesy
In summary

Sandra Ochola

The implementation of the 2010 Constitution has had its fair share of hurdles over the years.

While there are those that embraced its contents with ease, there exists a minority of  inflexible lot that continues to take it for granted and prefers to live by its own rules. 

Unfortunately for the latter, the environment within which the Constitution is being implemented might not allow for such discretions especially, when the country’s social and economic welfare is concerned. 

This week, the National government signed a landmark agreement with the management of Nairobi county to take up some of the county functions, including health, transport, public works, utilities and planning and development services.

As indicated in the agreement, the government is motivated by its need to effectively and efficiently provide services to city residents, a scenario that has since been negatively impacted by real and perceived failures of the county management. 

The decision by the government was made possible by the various legal and policy advancements in our constitutional dispensation.

Specifically, the agreement can be viewed as a culmination of the turbulent journey towards the enforcement of Chapter Six of the Constitution. 

That it is becoming practice to hold leaders accountable for their deeds while in office, is an undertaking that we owe to our new-found dedication to law and order.

The Judiciary now seems a trusted arbiter in this endeavour. This is remarkable, given its past dalliances with political power.

Most important is that there is political and social goodwill in protecting and promoting the sanctity of the Constitution and it provisions. 

Moving forward, this City Hall agreement will set the stage for similar engagements as we harness the benefits of the devolved system of governance.

It will also provide legal fodder for the both the Judiciary and the public on the management of relationships between the National and County governments. 

Predictably, some people have started filing cases to challenge the agreement based on varied interpretations of Article 187 of the Constitution provides.

The litigants opposed to the agreement argue that the transfer is unconstitutional, as it has not followed the requisite procedures set out in Intergovernmental Relations Act. 

They contend that there should have been meaningful public participation before the document was developed and that the Senate, the National Assembly and the affected County Assembly should have been consulted before such action was undertaken.

They also argue that such a transfer must clearly state affected functions and provide time frames within which the national government will assume full responsibility. 

The arguments are, however, challenged by those that feel that the constitutional provisions on the transfer of county functions are adequate and superior to those of the Act.

In this instance, there is an overt reliance on Article 187 and on the contents of the agreement, which provide that public participation can— and will—be effected post the signing of the document.

It is also their observation that, while the document currently has no legal authority, its contents indicate the parties’ intent and its implementation will be undertaken in line with the time frames provided in it. 

The affected institutions have also voiced their opinions on the matter. The Council of Governors, in a short press statement, has acknowledged the agreement and is perhaps debating the legal ramifications of the document on their respective constituencies.

Some members of the Senate, which is mandated to protect the interests of counties, have chided the agreement for its constitutional lapses asserting that there could be a ploy to stifle devolution and intimidate governors.

Citizens are equally divided on the same and what it means for them as the electorate. 

Regardless, there is a common understanding that good governance and quality service delivery must be upheld.

It is also established; that the Nairobi county government is facing internal leadership challenges that must be addressed if taxpayers are to receive value for their money.

It is also a shared desire that devolution continues to thrive despite the current teething problems. 

It is, therefore, only proper that this City Hall agreement will act only in the interest of the public.  —The writer is an Advocate of the High Court

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