Nairobi Governor Mike Sonko has renewed his attempts to withdraw from the deal with the national government that saw four county functions — health, transport, works, utilities and ancilliary services, and planning and development — transferred to the Nairobi Metropolitan Services (NMS), even as experts say it might be too late.
On Friday, the governor disputed the Deed of Transfer of functions signed on February 25 and wrote to Attorney-General Paul Kihara, Devolution Cabinet Secretary Eugene Wamalwa and NMS Director-General Mohammed Badi informing them of his intention to terminate the agreement.
Her cited “illegalities” committed before and after the signing of the agreement as the grounds for his latest bid, saying the deal was fatally flawed from the beginning since all the statutory avenues to discuss pertinent issues prior to the crafting of the deed and its execution were never made known to the Nairobi County government.
This came a day after he intimated that he was not in the right frame of mind before signing the deal, since he had been given alcohol.
Mr Sonko accused the national government of taking over illegally and failing to draw up a legal framework that would have made the agreement constitutionally sound. He said no legal antecedent had been observed, making it is null.
He added that there was no public participation before the agreement was signed, and that there were no consultations over the four affected departments, which contravenes Section 4 of the Intergovernmental Relations Act.
He added that no joint committee or authority has ever been formed in furtherance of the envisaged co-operation between the two governments. Instead, the national government has continued to adopt superior attitude, contrary to Article 189(1) of the Constitution which vests all the functions in the county government, he said
“Whereas the deed in its recitals expresses common intent, there was hardly any common intent at the antecedent level. It is grounded in sheer bad faith, monumental breaches of the Intergovernmental Relations Act ….the county government is unwilling to proceed with these naked breaches of the law,” Governor Sonko said.
But constitutional lawyer Peter Wanyama says it will be very difficult for Mr Sonko to withdraw from the agreement since the deal has already been implemented in terms of institutional framework and budgetary allocations. He says that, although the deed contains a dispute resolution clause, it does not specify how to go about it.
“He can try to withdraw but it is a bit late. There should have been some independent mechanism to resolve such disputes, and Sonko’s arguments might not be enough to provide for a speedy resolution of the dispute,” Mr Wanyama says
Lawyer Nzamba Kitonga adds that ending the agreement cannot be unilateral, especially after the recent court ruling giving the two parties 90 days to regularise the deal. “He can only exploit thet ruling to support his grievances to see whether they can be addressed,” Mr Kitonga added.
According to article 11.2 of the Deed states that in the event of a dispute, the parties shall first seek resolution amicably through negotiation but if this fails then within 30 days from the date one party notifies the other of the dispute in writing, the Parties shall refer the dispute to the National and County Governments Coordinating Summit.
Interestingly, the Summit, which is an apex body for intergovernmental relations, is chaired by President Kenyatta deputised by the chair of the Council of Governors.
Mr Wanyama observes that this will pose a challenge to Governor Sonko as the Summit that holds the ultimate decision is chaired by the President who is an interested party.
“It can only be final if the arbitrator ruling on his favour. From where I stand, NMS will be around until the next election when a new governor is elected for Nairobi County or other changes are done to the Constitution,” he said.
Another lawyer Bobby Mkangi agrees saying that as much as article 189 of the constitution as read with provisions of the intergovernmental relations Act provide for arbitration when there is a dispute within two levels of government, it will not be a walk in the park.
“Resolving disputes take time and should be reciprocated by both sides as per the Deed. Considering the anticipated 24 months, the time may lapse before a resolution is reached,” he said.
Governor Sonko has been in warpath with NMS ever since it was established in March maintaining that the body has no legal backing.
