Murkomen questions transfer of Nairobi County Government functions

Senate Majority leader Kipchumba Murkomen has questioned the constitutionality and legality of Tuesday’s unprecedented transfer of Nairobi County Government functions to the National Government.

Speaking on the Senate floor on Wednesday, Murkomen said the event held at State House Nairobi was an affront to the people of Kenya and the residents of Nairobi many of who were questioning its constitutionality, legality and resultant effect on service delivery.

“The Gazette Notice communicating the purported transfer of the functions of the Nairobi City County Government to the National Government raises weighty and grave questions of a constitutional and legal nature, particularly in the context of the devolved system of governance that is a key cornerstone of our Constitution,” he said.

The Elgeyo Marakwet Senator said State House’s reference to Article 187 as the guiding law for the transfer of the functions was an attempt to cleanse a flawed process.

“The Deed was executed yesterday, 25th February, 2020. The views of the public are now sought on a Deed that has already been executed. In effect, the people of Kenya have been denied the opportunity to decide, at the outset, whether or not the functions of the County Government should be transferred to the National Government,” he stated.

The Elgeyo Marakwet Senator said the deal allowed the national government to take 80% of the functions of the Nairobi County Government which are health services, transport, planning and development and public works, utilities and ancillary services, saying the county will remain a shell with minimal functions to perform.

“It is therefore completely baffling and unfathomable that despite the express requirements of the Constitution, the purported transfer of functions from the Nairobi City County government to the National Government was conducted in an entirely opaque manner with no reference whatsoever to the public generally and in particular to the people of Nairobi City County. This is a complete claw-back on the principle of public participation that is so dearly held by Kenyans at large.”

The Senator further questioned the process leading to the signing of the deed, questioning whether the execution of the Deed by the Governor is sufficient to constituent the approval of a county government.

“The execution of the deed was a unilateral decision that does not appear to have been taken by the County Government. The purported execution of the Deed by Governor Sonko is therefore not an act that speaks for and represents the wishes of the people of Nairobi. In this regard, it is therefore unconstitutional and illegal for non-compliance with the law.

The Senate Majority leader went further to raise the following questions:

“Who were the negotiators involved in the process from both the National and County Governments? How long did the negotiators take in the negotiation process? Was the public at any point made aware of these negotiations and of the plans towards the transfer of functions? Did the Cabinet approve the transfer of functions? Did the County Executive Committee similarly approve the transfer of functions?” he posed.

Murkomen further questioned why the county government transferred revenue collection functions to the Kenya Revenue Authority, yet this function in non-transferable.

Following the transfer of majority of the county government functions to National Government, Murkomen wondered whether the county still needed a Governor and what his role would be.

“What is the role of the Nairobi City County Assembly in oversighting the functions that have been transferred to the National Government? Relating to that, what is the role of the Senate in the oversight of those functions? Who is the accounting officer responsible for the execution of the functions that are sought to be transferred?

“Having transferred the large majority of the functions of the Nairobi City County Government, do we then need a Governor for that County? Do we require a County Executive Committee, and significantly what is the fate of Committee members and their staff responsible for the functions that are sought to be transferred? Do we need a County Assembly? What role remains for the County Assembly to perform?” posed the Senator.

During the session, majority of the Senators expressed support to the move by the national government to take over the running of Nairobi County.

At the end, Senators tasked two senate committees  to discuss and present a report on the deal  in the next 21 days.

Deputy Speaker Prof. Kithure kindiki directed the senate’s Legal Affairs and Devolution Committees to invite Devolution CS Eugene Wamalwa, Council of Governors’, Chairman Wycliffe Oparanya, Attorney General Kihara Kariuki among other government officials to shed light on the reasons and the procedure  followed in brokering the deal.