By Elizabeth Duya
Background
On 17th February 2026, a cooperation agreement worth Kshs 80 billion was signed between the National government and the Nairobi City County Government. The agreement aims at upgrading the city’s infrastructure and environment and increasing the city’s competitiveness globally. Specifically, the agreement outlines collaborative initiatives to improve waste management, upgrade infrastructure, improve urban mobility, and enhance public services. The agreement came into force amid growing concerns over governance gaps in the county, including a looming impeachment motion against the Governor by a section of Members of the County Assembly.
Legal underpinning
The cooperation agreement is premised on the Constitution of Kenya 2010, the Urban Areas and Cities Act1, and the Intergovernmental Relations Act.2
Article 6(2) of the Constitution envisages mutual relations between the county and national governments based on consultation and cooperation. Further, Article 189 provides for cooperation between national and county governments and the formation of joint committees and joint authorities for performance of functions and exercise of powers in such arrangements.
Critical accountability and good governance concerns.
Whereas the national and Nairobi City County governments have maintained that this is merely a cooperation agreement contemplated under Article 189(2) of the Constitution and not a transfer of functions, the agreement raises critical concerns about devolution, public participation, transparency, and accountability. In 2020, a similar arrangement saw the transfer of four3 core county functions to the national government through the establishment of the Nairobi Metropolitan Services4. The 2020 transfer of functions was mainly attributed to governance and leadership gaps within the county, including the impeachment of Governor Mike Mbuvi Sonko in December 2020. At the end of its tenure, the defunct Nairobi Metropolitan Service had accrued an estimated KShs 12 billion in pending bills, casting doubt on the efficacy of this current agreement.
Constitutional paradox, devolution, and governance queries
The agreement presents a constitutional paradox as measured against the objects of devolution under Article 174. On the one hand, the agreement advances the objectives of service delivery, social development, and equitable resource sharing by injecting KShs 80 billion. On the other hand, it threatens the objects of self-governance, democratic accountability, community management, and decentralization by establishing joint governance structures outside the framework established under Article 187, bypassing prior public participation and creating a special constitutional regime for one county. A constitutional interpretation is thus critical to determining how far intergovernmental cooperation can go, measured against the objects of devolution.
Public participation
Article 10 (2) provides for public participation as one of the national values and principles of good governance. Article 174(c) lists the participation of the people in decisions affecting them as a key object of devolution. Further, the Kenyan Courts have previously pronounced themselves on several cases concerning public participation and established that public participation is a non-negotiable step in the development or implementation of public policy decisions. In Republic versus IEBC Ex parte NASA Kenya & Others,5 The court declared that public participation was not a mere cosmetic venture or a public relations exercise. It further held that the people of Kenya intended these constitutional provisions to have “substantive bite” and to be enforced and implemented. The signing of the agreement without prior public participation is a cause of concern and highlights the need to strengthen public participation mechanisms and processes in Kenya.
The signing of the agreement without public participation is a cause of concern and highlights the need for strengthening public participation processes and mechanisms in Kenya. The proposed Public Participation Bill 2025, once passed into law, is expected to be a game-changer in addressing the long-existing issues about public participation, which include: standardization of public participation processes; timeframes and notice periods for public participation, among others.
Transparency and accountability
Kenya’s devolution structure establishes County Assemblies as the main oversight bodies over the executive at the county level.6 By bypassing the County Assembly, the process blatantly undermined the constitutional checks and balances established under the Constitution. Additionally, the proposed cooperation framework presents a challenge and complicates the oversight mandates of the Auditor General, Senate, and County Assembly regarding who is to be held responsible and accountable when things go wrong.
Conclusion
Whereas the Nairobi cooperation agreement presents a bold government experiment, it remains shadowed by legitimate transparency and accountability gaps. Key questions on who will be held accountable for the Ksh80 billion, how the County Assembly will exercise its oversight role, and whether public participation was meaningfully carried out remain. A constitutional petition challenging the validity of the cooperation agreement is set to be heard in March at the High Court in Milimani to give clarity on some of the noted gaps.
Elizabeth Duya is the Programme Coordinator – Citizen Demand and Oversight (CDO) at Transparency International Kenya.
