Nairobi Governor Mike Sonko (pictured) has taken on President Uhuru Kenyatta through a case at the High Court that aims to reverse the takeover of the county by the national government.
By supporting a lawsuit filed by activist Okiya Omtatah seeking a declaration that the transfer of four key functions to the central government is illegal, Mr Sonko has effectively taken the war to the president who oversaw the signing of the agreement.
The governor and Devolution Cabinet Secretary Eugene Wamalwa inked the deal at State House in a ceremony witnessed by President Kenyatta and Senate Speaker Ken Lusaka on February 25.
Uhuru said the takeover was necessary to improve service delivery in the capital city, which had been hampered by a power struggle at City Hall.
The president entrusted a team headed by Major General Mohamed Badi to run the city under the Nairobi Metropolitan Services (NMS).
Undermine devolution
The new team took over running of the Health, Transport, Public Works, and Planning and Development departments to the chagrin of Sonko, who refused to assent to a Bill allocating Sh15 billion for the transferred functions.
The disgruntled county boss went on the offensive, claiming that some of the president’s men were taking advantage of the agreement to frustrate him.
On April 21, Sonko launched a public tirade castigating unnamed government officials after sanitisation booths he had installed in the city were vandalised.
It later emerged that he had met with Deputy President William Ruto to voice his frustrations.
“When we started this process, the president had good intentions, but some of his officers, especially the ones who hate me, have hijacked the process to embarrass and frustrate me with impunity. This is the time to terminate the transfer of functions deed,” Sonko said.
The governor claimed he had been duped into signing the deed of transfer of functions.
“To date, I have not been furnished with a copy of the deed. I was not given sufficient time to even read the draft. I was told it is a good thing on service delivery to the great people of Nairobi as I deal with my court cases. Since I love you, the people of Nairobi, and have your interests at heart, I had to accept without even going through the document properly. I didn’t know it will turn against us.”
In his lawsuit, Sonko, through the County Public Service Board (CPSB), wants Uhuru’s appointees kicked out and the deal declared unconstitutional.
Nairobi County Legal Officer Lydiah Kwamboka said the transfer of functions was not intended to undermine the devolution process, which is what Sonko has accused Uhuru’s men of doing.
Ms Kwamboka alleges that Uhuru’s appointees to the NMS were handpicked, hence locking out other competent people from the jobs. Apart from Maj Gen Badi, the county is challenging the appointment of Fred Olunga, Peter Mwaniki, Hermorike Okuta, Lilian Kieni, John Muya, Marion Rono, Samuel Muita and Maureen Njeru.
“It is the belief of the fourth respondent herein that even though the transfer of functions to the national government was well-intended, the national government subverted its course and goodwill,” said Kwamboka.
According to the legal officer, the transfer of functions can only be successful if there are consultations and the Constitution is followed.
Kwamboka also faults the NMS’ decision to take over county employees, arguing that the Public Service Commission (PSC) never consulted the CPSB as had been agreed in the transfer document.
Sonko had directed 6,052 employees who were to be seconded to work under NMS to ignore the directive.
“The present petition is well-intended and is necessary action to correct maladministration and abuse of authority thus orders sought and prayers made in both the application and the petition should be granted” said Kwamboka.
“The transfer of functions was not intended to undermine the devolution process. We have therefore been advised by our advocates on record that on account of the unconstitutionality of the said appointment of the first to 10 interested parties, the same should be revoked.
”Mr Omtatah wants the gazette notice legalising the transfer quashed. He argues that the move is unconstitutional and goes against the intention of devolution. According to the activist, Nairobi residents were not consulted before Sonko appended his signature to the document
.Empty shell
“The removal of the key functions leaves Nairobi City County Government as an empty shell, and that is tantamount to dissolving the county government without reference/adherence to Article 192 of the Constitution.
”Outside court, Sonko maintained his resolve to have the deal terminated.
The governor, through his spokesperson Ben Mulwa, accused the PSC and the Kenya Revenue Authority of “overstepping their mandate and committing illegalities contrary to the deed of transfer”.
Mr Mulwa accused KRA of committing its first illegality when it published two bank accounts for purposes of revenue collection in disregard of the Public Finance Management Act and the County Government Act.
“The law is extremely clear that only the CEC of a county can provide direction in terms of opening or closing of county financial accounts,” Mulwa said during a press briefing at the governor’s private office in Upper Hill, Nairobi.
“When the Auditor General ultimately flags the county government’s accounts, the NMS or other State organs will not feature anywhere because the responsibility will be on the governor and the finance office.”
Mulwa said KRA had published a notice indicating that the taxman would be processing the payroll of the Nairobi County Government “yet in the agreement the taxman is a revenue collection agent just like any other hired by the county government”.
He also protested a letter by Head of Public Service Joseph Kinyua appointing chief officers for the county government, arguing that the law stipulates that the procedure for appointing chief officers is a preserve of the county government through the CPSB and the governor.
The spokesman further took issue with Speaker Beatrice Elachi for publishing the Nairobi County Supplementary Appropriations Bill, 2020, saying it was flawed.
Mulwa said Sonko had returned the initial Supplementary Bill passed on April 2 to the county assembly with a memorandum detailing his reservations.
“For the first time in the history of Commonwealth countries, we have a case where a speaker of an assembly has gone ahead to gazette a law. This is a matter already in court because we feel that it is important that the deed of transfer must be implemented procedurally and in accordance with the law,” he said.
[Kamau Muthoni, Anyango Otieno and Josphat Thiong’o]
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