The national government will not take over any devolved function from a county government unless with the express authority of the Senate and the County Assembly.

In addition, a function or power performed by one level of government will also not be transferred unless permitted by National Assembly, the Senate, or County Assembly.

Intergovernmental Relations (Amendment) Bill, 2021, which now requires one level of government that wishes to relinquish or transfer power, function or competency to be given the green light by the legislature.

The National Assembly shall permit the transfer of a national function to a county government while the Senate and the County Assembly shall allow a devolved function, power, or competency to be performed by the national government only after extensive public participation.

City’s devolved unit

The bill which comes up for the first reading in July once the Senate resumes, seeks to cure some of the gaps that were exposed when former Nairobi Governor Mike Sonko signed away the city’s devolved functions to the national government, effectively losing grip on his chaotic reign at City Hall.

Sonko surrendered Health, Transport, Public Works, Utilities and Ancillary, Planning and development services. Besides, the Bill seeks to make comprehensive provisions on the process of transferring functions and entrenching the Senate’s oversight role in the transfer of functions.

Homa Bay Senator Moses Kajwang’ who chairs the Devolution and Intergovernmental Relations committee, the transfer of functions to the Nairobi Metropolitan Services (NMS)  exposed certain gaps, in particular, with respect to the provisions contained in the manner in which the transfer was effected, oversight mechanisms of the transfer, the alleged duress under which the Nairobi County Government was placed to effect the transfer and the subsequent impeachment of the Governor of Nairobi County and appointment of the Deputy Governor of Nairobi County.

“The transfer of functions from one level of government to the other should be so elaborate, and one that respects and recognizes the important role of the county assembly and the Senate,” Kajwang’ said, adding that the process should mirror what is there in the Urban Areas and Cities Act.

Transfer of function

The intergovernmental relations act no. 2 of 2012 (4) and (5) states the national assembly shall be notified of the decision to transfer a national government power, function or competency.

It states that a county assembly shall be notified of the decision to transfer a county government power, function or competency.

Elgeyo Marakwet Senator Kipchumba Murkomen while faulting the City Hall takeover by the national government cited lack of public participation, the non-involvement of the county assembly and the Senate as among reasons the deal is unconstitutional.

He, however, said the move was weighty and must be approved by the county assembly. Article 187 of the Constitution provides for the transfer of functions between levels of governments upon an agreement.

It states that such functions, power or competency may be transferred if they would be effectively performed or exercised by the receiving government.

On June 3 last year, President Uhuru Kenyatta signed his first executive order of the year.

Among other things, it listed a newly created NMS—including functions such as health care, transportation, and public works—as part of the president’s office rather than an independent office in the county government system. 

The decision went against the spirit of the 2010 Kenyan Constitution, which established county governments to promote democratic accountability by devolving some powers to the local level.