The leap into 2022 heralds a new wave of uncertainty for the Nairobi Metropolitan Services (NMS).
With less than three months to the end of its two-year tenure, the Lieutenant Mohamed Badi–led NMS faces an uncertain future over whether it will get an extension beyond March 18, 2022.
The deed of transfer of functions to the National Government can only be extended by a substantive office holder with the backing of the county assembly.
The deed of transfer was signed on February 25, 2020, by then Governor Mike Sonko and then Devolution CS Eugene Wamalwa with the blessings of President Uhuru Kenyatta. The deed operationalised NMS for 24 months.
But with this contract coming to an end, NMS's fate squarely lies with Governor Anne Kananu.
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Legal experts however argue that while Ms Kananu has the power to extend NMS’ tenure, she can only do so until the end of the current regime which is September 2022.
Political analyst and constitutional expert Bobby Mkangi says the deed of transfer agreement was signed between the office of the governor presiding over the 2017-2022 period and the national government.
This, he says, means Kananu cannot purport to extend its tenure for another two years as it would be a preserve of the successive governor.
“Seeking a term extension for NMS with elections just a few months away would be ill-advised. Someone can go to court to challenge the term extension if it is not well executed. It would also be risky,” said Mkangi.
Another lawyer Danstan Omari is convinced that Kananu also has the option not to extend NMS’ tenure and request that the four transferred functions be reverted to City Hall.
“For either of these things to happen, all interested parties have to sit down and agree on the procedure to be followed while putting in mind the modalities of the law,” he said.
In the recent past, MCAs have been divided over the fate of the Badi-led institution.
In September, Riruta MCA James Kiriba kicked off a storm by tabling a notice of motion calling for a transitional oversight committee to instigate the reversal of the four transferred functions; Health, Transport, Planning and Public Works as well as utilities and ancillary services to City Hall.
He proposed that the committee be composed of assembly leaders, except the speaker, chairpersons of committees responsible for the transferred functions and three other people representing the youth, women, and persons living with disabilities from among the MCAs.
Kiriba’s motion, however, caused disquiet and jolted Jubilee party to initiate a process of de-whipping him.
A day later, Majority Whip Paul Kados wrote to Speaker Benson Mutura informing him that Jubilee leaders in the assembly had started disciplinary action against Kiriba with a view to kicking him out of all committees.
Kados further claimed Kiriba had violated Standing Order 205, which expressly provides for the process of tabling a motion to set up an ad hoc committee. Eventually, Kiriba withdrew his motion.
A huge section of MCAs led by Assembly Majority leader Abdi Guyo are however in support of NMS and have expressed their desire to have its tenure extended.
Guyo said the work being carried out by NMS was evident and efficient and as such, there was general consensus that its term be extended until a new governor is elected.
But Westlands MP Tim Wanyonyi, who has expressed interest in Nairobi governor's seat, said NMS should not continue operating and that it “should fold up and handover everything back to the county government”.
“After two years, NMS will become irrelevant and people will not feel what they are doing. It is better that they leave when they are still in a better place and not when people are shouting at them,” he added.
For a term extension to take effect, Kananu, in her capacity as acting governor, is required to make a formal request to the assembly and national government and justify why NMS should be allowed to continue controlling the four functions.
All interested parties should then draft, sign and avail to the office of the Attorney general a copy of the deed of agreement.
jthiongo@standardmedia.co.ke
