Constitutional lawyer Kamotho Waiganjo, married to Kirinyaga Governor Anne Waiguru, on Sunday, May 3 made an appearance on K24's Punchline show hosted by Anne Kiguta.
Waiganjo offered his thoughts on the dramatic events that have seen Nairobi Governor Mike Sonko move to terminate the Deed of Transfer of functions agreement he signed with the national government.
Sonko has been locked in a battle with government officials over the execution of the agreement, and refused to sign a bill releasing Ksh15 billion to the Nairobi Metropolitan Services (NMS), which is tasked with overseeing the transferred functions.
Arguing that Sonko's problem was not as much legal as it was political, Waiganjo predicted that it was unlikely that a court case seeking to invalidate the agreement would go anywhere.
This is because the Constitution provides for a summit with members representing national and county governments to resolve any disputes arising from transfer of functions.
He, however, noted that the lack of public participation could raise questions on the validity of the agreement.
"The Governor signed a deed that transferred four primary functions of the county government to the national government, and the law requires that if you transfer those functions you transfer them together with the resources necessary to carry out those functions.
"As a matter of law, that transfer happened. One can argue whether the processes could have been done differently but the transfer was done, effectively. And in fact steps have been taken to implement the performance of the functions," he asserted.
Waiganjo observed that, from a surface level, the national government had not overstepped its mandate in taking over more functions than agreed, as alleged by Sonko's camp.
"In the re-structuring of the law, the assumption was it was the national government that would be transferring powers to the county governments.
"So because this was not foreseen, there are a lot of things that were not provided for including the oversight mechanisms...A lot of those things were left unclear.
"So it's difficult to see where there has been default," he stated.
Noting the situation was political, Waiganjo observed that Sonko's claim that he did not read the agreement would not work in a court of law but was a valid political argument.
"This is a difficult one for the county to take to court successfully, a third party probably can. Part of the reason being that the way the deed and the Inter-Governmental Relations Act is structured, it requires that these issues of these nature are resolved politically, that is why it requires issues are taken to the summit long before it goes to court.
"I suspect that if the matter goes to court, either they would not give a hearing to the county government before it goes through the ADR requirements, and even if it goes through the ADR requirements its difficult to see how you can have that deed being set aside.
"Remember that even the Council of Governors supported the process as a matter of law. Remember that politically also, the county government has been in shambles from the beginning," he observed.
Waiganjo claimed that Sonko's problems could be traced back to his failure to appoint a Deputy Governor following Polycarp Igathe's abrupt resignation.
Watch a video of Waiganjo on Punchline below:
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