Kenya: Why Experts Want BBI Recommendation on Nairobi County Amended

26 October 2020

Proposals contained in the recently-launched Building Bridges Initiative (BBI) could return Nairobi County to a county council if adopted, constitutional experts have said.

The BBI report proposes that Nairobi County health services, county transport, county planning and development, county public works and firefighting services and disaster management functions be distributed as functions of the national government.

This is by transferring the functions to the State by amending the Fourth Schedule of the Constitution to provide the national government with the powers to oversee the functions.

Consequently, the report wants Parliament to, within a year, make legislation to provide mechanisms for the carrying out of the said functions.

However, the experts have warned that, if the proposal of taking away four critical functions of the City County is adopted, then it will leave it a "shell" with the governor reduced to a mayor, rather than wield powers as other governors of the remaining 46 counties in the country.

Constitutional lawyer Bobby Mkangi, who is also an independent legal consultant in governance, said that if the functions, which are the core of any county, go to the State then the result will be a "weaker" governor with significantly reduced powers.

Mr Mkangi pointed out that what the proposal means is that a governor who has been controlling a financial war chest of more than Sh30 billion and wielding significant political power over other governors will now be left with a paltry budget, relegating him or her to the status of a mayor who used to control insignificant functions in the defunct county councils.

"The question is why Nairobi should still be a county then if the county governor cannot exercise all the functions as other governors do? The Nairobi county government will be reduced to a county council that we used to have, running softer or less critical functions," said Mr Mkangi.

Some politicians who had aspirations to run for the gubernatorial seat in the 2022 General Election expressed their readiness to vie in other counties.

Talks have been rife that current Governor Mike Sonko might try his hand in Machakos County; former deputy governor Jonathan Mueke in his rural county of Kitui, and former governor Dr Evans Kidero in Homa Bay County.

Enjoy autonomy

Mr Mkangi observed that this is not the first time that the status of Nairobi City has been on the microscope as in 2010, during the discussions over the new Constitution, the fate of the capital city came into sharp focus but all the experts agreed that it remains like all the other counties although it is the capital city.

"There were discussions in Naivasha on how Nairobi should be handled but it was agreed that it be like any other county. Part of it was from the residents themselves who said that if other counties and cities were going to enjoy autonomy, then they also need to enjoy the same," he said.

The constitutional expert warned that residents could be disenfranchised in the process of electing a new governor knowing too well that he or she will not be able to have a say on delivery of services concerning the key functions affecting them but now with the State.

A constitution lawyer, Mr Nzamba Kitonga, now deceased, agreed with Mr Mkangi, saying that the proposal will leave a governor with "diluted powers" as the backbone of the county is gone with the national government.

"The governor might not be a ceremonial one but his powers will have been significantly cut down by the State. This does not sit well with the Constitution and should be reworked," said Mr Kitonga.

"The proposal overturns the provisions of governance in counties because you cannot have a governor whose functions are transferred somewhere else. This should apply across the board to all governors and not just the one for Nairobi," he added.

However, the BBI report defended the proposal, saying that a majority of the stakeholders recognised that although Nairobi is the capital city and a major diplomatic hub, including being a global United Nations headquarters, its management had been neglected and hence should be accorded a special status and its growth and development must be given due attention.

But Mr Mkangi pointed out that if that is the case, then the county should have had more powers like Bavaria in Germany to be semi-autonomous even with its security apparatus.

The functions proposed in the BBI report are currently run by NMS apart from firefighting services and disaster management which are domiciled in the office of the governor.

In June, President Uhuru Kenyatta, in a revised Executive Order, added NMS as one of the offices falling under the Executive Office of the President, entrenching the new office as a public office.

This, in essence, placed NMS as a department under the national government to execute the functions on behalf of the county government.

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