How Kananu swearing-in could offer NMS a lifeline

When the Supreme Court on Monday cleared the way for the swearing-in of Ann Kananu as Nairobi’s third governor, the ruling was like killing two birds with one stone.

Ms Kananu’s assuming the reins of the Nairobi County government is now not a matter of if but when she will do so. This could offer a lifeline to Nairobi Metropolitan Services (NMS), which is in charge of four key City Hall functions.

Legal experts say that with Ms Kananu set to become a substantive governor, NMS’s term could be extended.

This would not have been possible had the case challenging her swearing-in dragged on, leaving her only as an acting governor.

The NMS, led by Lt-Gen Mohamed Badi, has less than five months before its two-year term ends, and it is uncertain whether it will be extended so close to a General Election.

On February 25, 2020, the governor at the time, Mike Sonko, and former Devolution Cabinet Secretary Eugene Wamalwa, with President Uhuru Kenyatta's nod, signed an agreement to transfer the functions to the national government.

The functions were county health services, transport, public works, utilities and ancillary services, and county planning and development.

The Deed of Transfer gave NMS the mandate to oversee the functions for a renewable period of 24 months from March 17, 2020, when the entity was established, meaning the deal is in force until March 2022.

Lawyer Danstan Omari says the transfer agreement includes conditions for its renewal but that can only be done by a substantive governor and not a deputy or acting governor.

In essence, then, with Ms Kananu taking over as the first female governor of Nairobi, explains Mr Omari, she will have the mandate to extend NMS’ term.

The former Disaster Management and Coordination chief officer, he said, will be able to discharge all functions of a governor once she takes the oath of office.

“If she is substantively sworn in, she will execute the mandate. So she can extend NMS’s term. Sonko did not sign the Deed of Transfer as Mike Mbuvi Sonko but as the governor of Nairobi,” Mr Omari said.

“Under the law, there is the law of perpetuity and continuity of government agencies so we expect her to discharge the mandate of the governor.”

Lawyer Charles Kanjama agrees, saying nothing will stop Ms Kananu from extending the term even on the day before the General Election.

He explained that the agreement can be extended for as long as the two parties involved agree to continue the deal, as the Constitution allows any governor to transfer the functions of a county government to the national government.

“If Kananu becomes a substantive governor, she is at liberty to extend the term or not. The Deed was between the county government and the national government and not Sonko and the national government,” Mr Kanjama said.

But he added that if the term is not extended, it will be assumed to have expired and the functions will return to the county government.

Ms Kananu has in the past said she has no qualms about extending NMS’s tenure and has the blessings of a majority of Nairobi MCAs.

Choose to rescind the extension

Mr Omari explained that the extension, nonetheless, will be up to September 22, 2022, when she still has the power. Thereafter, a newly elected governor will be sworn into office and could choose to rescind the extension or let it continue.

He also said the question that might come up is whether Ms Kananu can extend the term with or without public participation.

But he also observed that Ms Kananu can choose not to renew the term.

“If she wants to run away from it, then she can start a new process to revoke (the Deed) by going back to the assembly, because within the Deed there are mechanisms of rescinding it,” he said.

Mr Kanjama said that if a new government comes in and it wants to set aside that agreement, it can do it.

“The extension can be reversed by a new governor as it cannot tie the next government,” he said.

Under the Deed of Transfer, terminating the agreement is a tedious task and in the event of a dispute between the parties, the Deed requires them to first seek a resolution amicably through negotiations.

If they fail to reach an agreement within 30 days from the date either party writes to the other, they will escalate the matter to the National and County Governments Coordinating Summit.

Any amendments, modifications and additions to the Deed can only be conducted by ‘‘a written instrument’’ duly executed by or on behalf of each party and the deal can only be terminated by the mutual written consent of both parties expressed in a common document.

Nevertheless, most Nairobi MCAs favour extending the term, with Majority Leader Abdi Guyo saying the general consensus is that NMS's term should be extended until a new governor is elected.

Mr Guyo praised the work NMS is doing in the capital, saying it should not be stopped from continuing its services to residents.

Minority Whip Peter Imwatok also said the ODM side wants NMS's term extended and he was working on a motion to that effect.

The planned motion, he said, will call for the transition clause to be invoked after the 2022 General Election so that a new governor will have a minimum of four and a maximum of six months to return the transferred functions from NMS.

The achievements of NMS, the Makongeni MCA argued, could not be allowed to go down the drain by pre-election political intrigues.

“The motion will call for the extension of the Deed of Transfer for another year or so to allow for completion of the projects,” he said.