Go for individual suspects in South C building collapse, surveyors tell DPP

File image of collapsed building in South C Nairobi 

Surveyors have opposed plans by the Office of the Director of Public Prosecutions (ODPP) to charge all members of Nairobi County’s Urban Planning Technical Committee (UPTC), among other suspects.

They have also opposed plans by the Nairobi Governor Johnson Sakaja to constitute a new committee.

The surveyors said that, despite supporting the pursuit of accountability, the DPP should not prefer blanket charges against the entire committee but instead charge only those responsible for the crimes committed.

The move comes after ODPP recently approved charges against more than 80 individuals, including members of the Nairobi City County and suspended County Urban Planning Chief Officer Patrick Analo, who was the chairman of the committee.

They are to be charged following the collapse of a 16-storey building (Manzil Towers) that was under construction in South C early this year, which killed two security guards.

According to information, the tower was initially approved to be a 12-storey tower, but later went up to 16 floors.

Analo was arrested last week in his Syokiamu home in Machakos County after sleuths found Sh65.3 million stashed in briefcases. 

The DPP in a statement said Analo and 36 others will face charges of abuse of office, contrary to Section 101(1) as read with Section 102A of the Penal Code, and neglect of official duty, contrary to Section 128 of the Penal Code. Other accused persons are public officials, developers and professionals linked to the project.

They include neglect of official duty, manslaughter, making and uttering false documents, starting a project without an Environmental Impact Assessment license and abuse of office.

Criminal proceedings

The committee consists of representatives nominated by institutions such as ISK, Architectural Association of Kenya, Kenya Institute of Planners, Institution of Engineers of Kenya and other stakeholder bodies who do not serve as executive officers of the county government.

“The ISK has taken note of the decision by the ODPP to institute criminal proceedings against members of the Nairobi City County UPTC in relation to the tragic collapse of Manzil Towers, as well as the subsequent decision by the governor of Nairobi City County to reconstitute the committee,” said ISK President Eric Nyadimo, in a statement sent to newrooms on Friday.

Nyadimo said he fully supports the pursuit of accountability for the mentioned crimes. “However, accountability must be founded on law, evidence, institutional responsibility and individual culpability. It must not be pursued through blanket attribution of criminal liability or through actions that obscure the deeper systemic failures that continue to plague planning and development control processes within Nairobi City County.”

The surveyors said the institution is concerned by the apparent blanket approach adopted in charging members of the UPTC without sufficiently distinguishing between those who possess statutory decision-making authority and those whose role was merely advisory.

He said the mandate of the UPTC is fundamentally advisory and does not issue development approvals, sign development permissions, grant occupation certificates, exercise enforcement powers, nor does it possess executive authority to authorise developments contrary to law.

Under the Physical and Land Use Planning framework and the institutional architecture of county governments, the legal authority to approve or reject development applications rests with the relevant county executive.

The institution said that where evidence demonstrates fraud, corruption, collusion, bribery, falsification of records, professional misconduct or abuse of office by any individual member, the law should take its full course. However, it said that where no such evidence exists, the indiscriminate prosecution of entire committees threatens the foundational principles of fairness, legality and due process.

Governance failures

On reconstituting the committee, the surveyors said that while administrative restructuring may be presented as a corrective measure, reconstituting the UPTC does not in itself address the systemic governance failures that have repeatedly been exposed within Nairobi’s development approval and enforcement ecosystem.

“In reality, reconstitution often amounts to little more than replacing nominees from professional associations, resident associations and civil society organisations while leaving intact the executive and administrative structures that exercise actual decision-making authority,” said Nyadimo. He said the public must not be misled into believing that replacing independent professional representatives constitutes a solution to longstanding challenges in planning governance.

Nyadimo said that unless these structural deficiencies are addressed, replacing committees or prosecuting selected individuals will do little to prevent future tragedies.

The surveyors, who also called for various comprehensive reforms in the approval ecosystems, called upon DPP to carefully review the basis upon which members of the UPTC have been charged and ensure that prosecutions are anchored on demonstrable individual culpability rather than collective membership of a technical advisory body.