Does Article 187 of the Constitution authorize individuals to transfer functions from one level of government to the other?
is the question that needs an answer following what is now becoming a debate on
the implementation of the constitution and the flagrant abuse to constitutional
it authorize governments to transfer functions legally through legislation in parliament
and the respective county assembly?
Some Background to
the 2010 Constitution
governments were established under the 2010 Constitution which was promulgated in
August of that year under President Mwai Kibaki.
The constitution was cobbled together after the 2007/8 post-election violence in what was meant to be a watertight setting where some areas of the country which had for long been neglected would not feel disenfranchised.
This marginalisation, and the presidency, were largely the bone of contention in Kenya which many pundits attributed to the usual chaotic elections and the deadly outcomes.
this in mind, the country’s leadership decided to have a constitution which
would equalise everyone regardless of where they were. Citizens in Nairobi
could be equal to those in Turkana, Wajir and many other places if the ideal of
the constitution’s spirit was followed.
2013, Kenya’s most expensive election yet happened. Implementing the constitution
would be an expensive affair and with the first elections under the new law,
there was confusion, largely.
were yet to unfurl and Kenyan’s thought that they had found a panacea in the
new document which they expected to change things overnight. It did not,
however, turn out as expected and Kenyans started questioning the superiority
of the constitution as the supreme law of the land. Many areas remained worse
off even under the new dispensation where inequalities continued to grow.
With the understanding that the constitution would not make things right, a section of Kenyans have been calling for its amendment coming up with different scenarios and proposals one of which is the Building Bridges Initiative (BBI). Kenyans have been left more fractured by Uhuru Kenyatta and Raila Odinga’s push for the BBI after the handshake risking what could be another chaotic round of electioneering.
the proposals in the BBI, the constitution has not even been halfway implemented
yet changes are already being proposed. And this is where the handover of some
functions on the Nairobi county government comes in.
to the 2013 election, the government was of the idea that the Capital City
should remain its function but due to the how the constitution structured
devolution, nothing of that natured materialised.
Evans Kidero was elected the first governor and ran the city down. There were
serious allegations of theft and mismanagement of funds by his government and
it wasn’t until he was out that he was charged in courted. Cases related to his
tenure are still ongoing.
Mike Mbuvi Sonko and the government is in a fix. Sonko bulldozed his way
through populism and with an army of followers, Jubilee had no option but to
hand him a ticket. However, the ticket was just in the hope that the
machinations behind the scenes would see a more suitable candidate occupy the
seat to run the city in the sun.
Kenneth, who was seen as being a puppet for Jubilee failed to clinch the seat
and so the beginning of a long ride to dethroning the king of bling began.
the scenes, there have been several failed coups at the Nairobi County Assembly
but the most successful, yet, was the plan to impeach Sonko as the governor. But
going by the happenings on Tuesday, the bling king could have beaten the system
halting the march against his office in its tracks.
On Tuesday evening, State House Spokesperson Kanze Dena released a statement stating that the county government of Nairobi had surrendered some functions to the central government.
statement read: “In a land mark agreement signed at
State House today, Governor Mike Mbuvi Sonko and Devolution Cabinet Secretary
Eugene Wamalwa in concurrence with President Uhuru Kenyatta, signed an
agreement, handing over functions of the Nairobi County Government to the
National Government, pursuant to Article 187 of the Constitution.”
Nairobi County Under
added that the signing of the agreement was also witnessed by the Speaker of
the Senate, Kenneth Lusaka and the Attorney General Paul Kihara.
National Government therefore, will take over the following functions of the
Nairobi County Government:
i) County Health services
ii) County Transport services
iii) County Public Works, Utilities and
iv) County Government Planning and
statement noted that the takeover would ensure Nairobi residents receive
move comes as a breakthrough in the running of county services that had ground
to a halt,” added that statement.
this scenario then, it has come to pass that the central government has succeeded
in doing what was impossible with the nascent constitutional order. Is taking
over the Nairobi County functions a threat to devolution in the country? Could it
be that the constitutional change is coming as Kenyans watch by the side-lines?
Is a Ministry of Nairobi metropolitan in the making?
governments are established under Chapter
Eleven of the constitution.
Article 179 (1) The executive authority of the county is vested in, and exercised
by, a county executive committee which consists of the governor, the deputy
county governor and members appointed by the county governor, with the approval
of the assembly.
If Nairobi County has surrendered some functions to the national government, does this mean that Kenyans should expect a new constitutional order?
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