OKANGO: Nairobi cooperation agreement not a power grab but constitutional wisdom

A troubling pattern has emerged in our public discourse: any collaboration between the National Government and Nairobi City County is reflexively branded a constitutional “takeover”. Critics routinely invoke Article 187 of the constitution as a political siren rather than a legal mechanism. The result is more rhetoric than reason.

The cooperation agreement recently signed between the two levels of government is not a transfer of power. It is the discharge of a constitutional duty. Assertions to the contrary do not withstand legal scrutiny.

Having examined the agreement clause by clause and cross-referenced it with the constitution, the Urban Areas and Cities Act (Cap 275) and the Intergovernmental Relations Act (Cap. 265F), the conclusion is straightforward: the instrument is constitutionally anchored, statutorily compliant, and administratively coherent.

Article 187 permits the transfer of functions from one level of government to another, subject to strict conditions — legality, effectiveness and the transfer of necessary resources. It contemplates a scenario where one level relinquishes a function, and the other assumes it.

That is not what this agreement does.

Clause 3.1 expressly states that collaboration is “directed towards strengthening the performance of county functions". Strengthening is not surrender. It is structured support. Clause 4.1 further establishes joint identification of projects, joint funding, joint implementation and joint monitoring. A transfer requires withdrawal by one party. Here, both remain actively engaged.

The governance framework also defeats the takeover narrative. The governor serves as vice chairperson of the steering committee and as chairperson of the implementation committee. The county attorney is a signatory. The county secretary acts as joint secretary. County leadership is embedded at the heart of execution. Centralisation would look very different.

What emerges is partnership, not pillage.

The statutory backbone of the agreement lies in Section 6 of the Urban Areas and Cities Act, which addresses governance and infrastructure management in the capital city.

Nairobi occupies a unique constitutional and geopolitical position. It is the seat of the national government, host to diplomatic missions and a global hub that stands alongside New York, Geneva and Vienna as one of the few cities worldwide hosting multiple United Nations headquarters.

Section 6 anticipates integrated planning between national and county governments for strategic infrastructure and essential services. The capital city cannot function effectively if the two levels operate in institutional silos. Coordination is not discretionary; it is legislated.

The cooperation agreement, therefore, represents statutory compliance, not executive improvisation.

Article 6(2) of the constitution provides that the two levels of government “are distinct and inter-dependent and shall conduct their mutual relations based on consultation and cooperation”. The word “shall” is mandatory. The constitution commands cooperation.

Article 189(2) further authorises the establishment of joint committees and joint authorities. The steering and implementation committees created under the agreement operationalise these provisions. They are instruments of constitutional design, not deviations from it.

Devolution was never intended to produce competing sovereignties. It was crafted to enhance service delivery while preserving national unity. Interdependence is a structural feature of the constitutional order.

Clause III identifies priority sectors: waste management, county roads and street lighting, markets, housing, and water and sanitation. These are not abstract policy categories, they are daily frustrations for residents — uncollected garbage, cratered roads, dark streets, congested markets and unreliable water supply.

Addressing these challenges requires substantial capital investment, technical expertise and sustained financing. Modern landfill systems, large-scale road rehabilitation, market redevelopment, and water infrastructure expansion demand coordinated spending that often exceeds county capacity alone.

Clause 7.3 safeguards devolution by requiring that projects be properly costed and processed within the respective budgets of both governments. County budgetary authority remains intact. The national government supplements; it does not supplant.

The agreement mandates public participation consistent with constitutional principles and statutory requirements. This is enforceable governance practice, not decorative language.

Citizens must interrogate the document, attend public forums and demand accountability. The framework exists; civic vigilance must activate it.

Nairobi faces rapid urbanisation, unemployment pressures, environmental strain and aging infrastructure. Suspicion alone will not deliver roads, sanitation or water.

This agreement does not weaken devolution; it enhances capacity. It does not transfer power; it coordinates responsibility. It does not centralise authority; it integrates effort.

Nairobi’s complexity demands constitutional maturity. Cooperation is not capitulation. It is constitutional wisdom.

Strategic adviser and expert in leadership and governance