Ruto-Natembeya feud: The Constitution is clear on markets

The relationship between governors and the national government is governed by the Constitution of Kenya, 2010.

The starting point is Article 6(2), which provides that the governments at the national and county levels are distinct and interdependent and must conduct their mutual relations through consultation and cooperation.

A governor is not a subordinate of the President, just as the President is not a subordinate of a governor. Each must respect the constitutional mandate of the other.

On the specific dispute between President William Ruto and Trans Nzoia Governor George Natembeya, the Constitution is particularly clear on the question of markets.

Part 2, paragraph 7(a) of the Fourth Schedule assigns trade development and regulation, including markets, to county governments.

Article 186(1) reinforces this allocation by providing that the functions of the two levels of government are those set out in the Fourth Schedule.

Further, section 5 of the County Governments Act, 2012, recognises the responsibility of county governments for functions assigned to them by the Constitution and legislation.

If, as the Governor maintains, the Masinde Muliro Market in Kitale was constructed using county government funds and World Bank support, then the national government must acknowledge the county’s role and respect its constitutional mandate.

The President is entitled to visit the market, engage with residents and support development.

However, he cannot use the authority of his office to displace the county government’s lawful responsibility for the management of a devolved market.

The legal question is not who gets the political credit for the project, but who has the constitutional authority and responsibility to manage it.

The Governor’s account of the project’s funding and management should, of course, be verified against the relevant project and financing records.

Article 174 of the Constitution identifies the objects of devolution, including democratic and accountable exercise of power, the recognition of the right of communities to manage their own affairs, and the promotion of social and economic development.

Article 175 establishes the principles of county government, while Article 189(1) requires the two levels of government to perform their functions in a manner that respects the functional and institutional integrity of the other level.

Article 189(2) further requires the two levels of government to make every reasonable effort to settle disputes through alternative dispute-resolution mechanisms, including negotiation, mediation and arbitration.

The Intergovernmental Relations Act, 2012, provides the statutory framework for consultation, cooperation and the resolution of disputes between the national and county governments.

My position is therefore that the President would be wrong to the extent that he treats a county market as though it were a national government project under his unilateral control.

The Fourth Schedule places markets within the county government’s mandate.

The President’s constitutional responsibility is not to dominate governors, but to respect devolution and cooperate with county governments in delivering services to Kenyans.

The broader point is that devolution was intended to dismantle the concentration of power that characterised the old centralised system of government.

A President cannot invoke development as a justification for disregarding the Constitution.

Equally, a governor must exercise county authority lawfully and remain accountable for the proper management of county resources and services.

The Constitution does not contemplate a contest between the President and governors for political supremacy.

It contemplates two levels of government working together, each within its lawful mandate, for the benefit of the people.

Where either level crosses that boundary, the answer is the Constitution and the law, not political intimidation or confrontation.

The author, Evans Ogada, is an Advocate of the High Court of Kenya