The Law Society of Kenya has refused to nominate a representative to the Nairobi Metropolitan Services’ Planning and Land Use Liaison Committee.
In a letter addressed to NMS deputy director general Enosh Onyango, LSK boss Nelson Havi said that the Maj Gen Mohammed Badi-led agency is an illegal entity with no mandate to execute the functions transferred from the county government.
“There is however no indication in your letter as to the process by which NMS was prescribed and established as the institutional framework for the execution of the transferred functions in line with the provision of Article 7.1 of Deed of Transfer,” Havi said.
According to LSK, the liaison committee is by extension illegal because the establishment of NMS has not been anchored in law.
“We took the liberty to peruse every publication of the Kenya Gazette to confirm if there has been any publication of any statutory instrument prescribing and establishing NMS as the institutional framework pursuant to Article 7.1 of Deed of Transfer. We are yet to find one,” Havi said.
On a letter dated May 4 that NMS had written to LSK to nominate an advocate of the High Court to the soon-to-be-established liaison committee. While we really can’t make a judgment much, we asked Havi through the LSK to furnish us with the said letter, we didn’t get any reply, I had talked to a county official who said he wasn’t aware of any letter written to LSK.
Back to the matter at hand, I find it rather unusual that the NMS/Sonko wars has been in the public light for months now and LSK didn’t even jump in and I wonder why? Sonko has already filed a petition challenging the legality of the deed, is LSK or Havi enjoined in it or will they now enjoin now that the society has dismissed it as a bogus body?
On the LSK Twitter feed, there’s a range of opinions
After careful consideration… and in the absence of a statutory instrument establishing @NMS_Kenya we have made the conclusion that @NMS_Kenya is not a body established or recognized in law and, by extension, neither is the Liaison Committee sort to be constituted… pic.twitter.com/0bidMGnG4S— Law Society of Kenya (@lawsocietykenya) May 16, 2020
The timing of LSK’s verdict leaves a lot to desire like, where was LSK when this deal was being formalized in statehouse? When the NMS was being sworn in where was Havi and LSK? Why dismiss the body now and not then?
Sonko is now running like headless chicken, was he coerced?
In a Facebook post on why he accepted the transfer of functions, Sonko said that in order to address the unique needs of Nairobi, his government set out a fact finding mission.
Sonko said that they benchmarked and took lessons from other jurisdictions across the world including Washington DC in the US and Abuja in Nigeria.
“We established that cities and metropolis, the size of Nairobi, are best served jointly by devolved units and Central Governments,” he said.
“I initiated discussions with the National Government with a view of finding a sustainable approach to service delivery that leverages both on the County and National resources and competencies.”He said.
Sonko said the agreement signed would not only help enhance service delivery in the city but will also reposition Nairobi as the economic hub of the region.
“…my government will ensure that Nairobi regains its famed status as the “Green City in the Sun” among other targets that we have set for ourselves,” he said.
He further said that “we believe our bold decision to collaborate with the National Government through the transfer of some of our functions will create positive governance precedence that will help strengthen devolution.”
According to the Constitution, 1) A function or power of government at one level may be transferred to a government at the other level by agreement between the governments if:
(a) the function or power would be more effectively performed or exercised by the receiving government, and (b) the transfer of the function or power is not prohibited by the legislation under which it is to be performed or exercised.
Sonko has since had a change in heart for whatsoever reasons best known to him.
LSK’s verdict is coming at a time when Sonko and NMS war has deepened with the new body claiming they don’t have money to run the functions. Sh15B was to be given and Sonko stopped the payment. LSK’s verdict would go to breath more air to Sonko’s plight to regain the lost powers and control of the budget.
There are those who read so much into LSK’s decision.
Why do LSK want legal instrument yet the constitution is clear on article 187 on transfer of functions between the level of government. Partisan interests detected— Rotich (@kipsongokkibet) May 16, 2020
Seems like the law society has chosen sides in this political battle.— John bull (@Johnbullose) May 16, 2020
Is there anyone who cares about LSK political decision? Isn't it obvious that @lawsocietykenya through its chairman @NelsonHavi has taken political side and is now pursuing selfish interest on someone's behalf? LSK which I used to know is dead— Philip A (@PhilRevolt) May 16, 2020
And those who love the step taken
LSK is redeeming its status in the country. Fidelity to the rule of law must be adhered to— DAVID TAMBARU (@David_M_Tambaru) May 16, 2020
If this how all entities work in government offices Kenya could be very far! @NelsonHavi good job God bless!— beatrice njeri (@beatricenjeri7) May 16, 2020
The Law Society of Kenya @lawsocietykenya under President @NelsonHavi is the new SHERIFF in town…PRIVATE PROSECUTION of government officials is COMING BACK. Under section 4 of LSK Act, LSK has HUGE POWERS and BIG RESPONSIBILITIES @ProfOjiendaTom— Ahmednasir Abdullahi SC (@ahmednasirlaw) May 17, 2020
Anyway, with all the doubts cast and praises, we really want to see the next step LSK is going to take in the interest of the public now that they’ve made a stand.