NMS, posting soldiers to City Hall unlawful

Devolution CS Eugene Wamalwa and a jovial Nairobi Governor Mike Sonko when they signed an addendum to Deed of Transfer of Services at State House, Nairobi, in March. [File, Standard]

Kenya is constitutional democracy. In accordance with Article 1(4) of the Constitution, the sovereign will and power of the people is exercised at both the national and county level. Neither level is subordinate, subservient and/or a creature of the other.

Nairobi County political governance problems must be resolved through constitutional and political means. Nairobi is not different from other big cities in the world that are governed by democratically elected state or regional governments. Nairobi is not bigger in size, economy and strategic importance than Johannesburg. Yet Johannesburg is administratively, politically, security and economically under the control of the Gauteng Provincial Government. New York, the headquarters of United Nations, is under New York State Government.

Yes, Nairobi City County has strategic regional role. However, that can never be reason to interfere with constitutionally established and elected Nairobi City County Government and its constitutional functions as per Article 176 of the constitution.

The Nairobi Metropolitan Service (NMS) violates the division of functions between the national and county governments. It dismembers the system of shared powers and co-operative government established under the Fourth Schedule of the Constitution. That schedule enumerates the powers of the county governments, those of the national government and also delineates the powers that are shared by the two. The Fourth Schedule establishes no other unit of government. The Constitution has fully enshrined the autonomy and competence of county governments to oversee and execute functions in their jurisdiction.

The drafters of the Constitution did not create a three-tier system with operational governments at the national, county and MNS levels. Counties are distinct and self-governing units. If the national government wants to make grants to them, it must leave it to them to execute the projects according to their integrated development plans, which are developed in full participation of all stakeholders in the county.

Nairobi Metropolitan covers five counties. As a result, NMS operations, significantly subvert the constitutional jurisdiction mandate of the five counties namely Nairobi, Kiambu, Kajiado, Machakos and Murang’a. Therefore, its establishment, functional mandate and funding is not only unconstitutional but also interferes fundamentally with devolution and its underpinning philosophy and governance design.

Only those five county governments can jointly make an arrangement with a national government ministry, department and or agency—not the NMS—to manage certain services on their behalf in accordance with Articles 6 and 189 of the constitution.

Technical support

Further, the Constitution sets out the public finance management and sharing of  revenue which cannot be altered administratively or in normal Acts of Parliament.

The national government is constitutionally required under Article 190 to provide adequate technical support capacity to county governments for them to perform their functions properly. It has never done so.

Nairobi County Government does not require and or depend on National Government to make key decisions. While the Constitution encourages coordination, consultation and cooperation between two levels of the government, the county government is distinct and independent of the national government.

Articles 1, 6, 10, 174, 183 and 187, and 255 protect the county government. It has constitutional mandate and authority derived from the people of Nairobi and the Constitution. It has constitutional obligation to ensure quality services that are fairly and equitably distributed. If it fails, Nairobi electorate have constitutional powers to recall it.

In accordance with Articles 176, 187, and 189 of the constitution Nairobi County Government retains original jurisdictions of all functions, even those four unconstitutionally transferred to the NMS. Further, the county government has the legal mandate for finance and economic planning of county affairs. It was therefore illegal and unconstitutional for National Assembly to mischievously purport to cut the county’s national revenue share and allocate it to NMS.

This despicable act by the Assembly smirks of a plot to kill devolution. Senate was correct to reject the National Assembly budgetary allocation to NMS. NMS is alien to the Constitution. Nairobi County Government was not suspended or dissolved as per Article 192.

The formation of an amorphous and unconstitutional NMS and transfer of the four functions was a civilian coup against the sovereign will of the people of Nairobi and democratically elected county government.

The appointment of active military personnel to lead this coup is not only unconstitutional but very dangerous to the constitution, democracy and devolution. This model is borrowed from China.

Kenya Defence Forces (KDF) must not lose its reputation as a force that is untainted by politics. KDF must uphold Article 238(2)(a)(b) which is very specific on principles guiding and guaranteeing security and operation of national security organs. Further, 239(3) (4) (5) gives national security organs clear constitutional conditions which they must adhere while performing their functions and exercising their powers.

Kenya military personnel take great pride in being above tainted politics. Given the enormous responsibility that Kenyans grant them, they trust that soldiers would never be used to achieve political and economic ends. It is very dangerous for active military officers to join political state.

Mr Wainana is Executive Director, International Center for Policy and Conflict. @NdunguWainaina