Senators take on President Uhuru Kenyatta for endorsing cuts to county billions

By MOSES NJAGIH

Kenya: Angry Senators will ask the Supreme Court to nullify a new law signed by President Kenyatta that limits the revenue allocated to the counties to Sh210 billion.

They are unhappy that the President assented to the Division of Revenue Bill despite pleas that he should reject it.

The Supreme Court now braces for another controversial case just months after confirming Kenyatta as President and dismissing a presidential election petition filed by former Prime Minister Raila Odinga.

The Senate will likely ask the Supreme Court to declare the enactment of the Division of Revenue Act unconstitutional. The House, which had asked President Uhuru not to sign the Bill after he received it from the National Assembly, termed the move as having grave implications on the future of devolution.

The Senate suspended its business yesterday after word filtered out that the Head of State had assented to the Bill, and immediately retreated to a kamukunji (informal meeting) to deliberate the matter.

After the meeting, the senators came out with guns blazing and vowed to challenge the President’s move in the country’s highest court “if only to ensure that the constitutional stipulations are not violated”.

They said they would not relent in their duty to protect devolution and the county governments.

Senate Majority Leader Kithure Kindiki cited Article 96 (2) of the Constitution to justify their stand that the Senate has a role in allocation of national revenue to the counties.

It states: “The Senate participates in the law-making function of Parliament by considering, debating and approving Bills concerning counties, as provided in Articles 109 to 113.” Kindiki said the Senate has eminent lawyers capable of prosecuting the matter.

He warned that President Kenyatta’s move could trigger violation of the Constitution in future, hence the Senate’s decision to approach the Supreme Court.

“Other bodies could also be willing to approach the court, but we do not want to be seen as acting through proxies,” said Kindiki.

“We are going to court so that it can give an advisory opinion on the right procedure. There is a (precedent) ruling from a South African court that if the right procedure is not followed then that law is declared null and void,” said Meru Senator Kiraitu Murungi.

The National Assembly is relying on Article 95 (4) of the Constitution to justify it has an exclusive role on the Bill. The article stipulates: “The National Assembly–– (a) determines the allocation of national revenue between the levels of government, as provided in Part 4 of Chapter Twelve.”

MPs insist that the Senate’s role is to determine allocations among counties through the Counties Allocation Bill as outlined in Article 96(3) of the Constitution that says: “the Senate determines the allocation of national revenue among counties, as provided in Article 217, and exercises oversight over national revenue allocated to the county governments.”

But a bristling Kindiki said: “We do not want to appear as if we are sulking, but we feel that the core duty of our existence as Senate is threatened. Maybe, time has come for Kenyans to decide if they want devolution or not”. The Senate Majority Leader said members of the House are ready to pay the ultimate political price to ensure the spirit of the Constitution is respected.

“We do not want to play cheap politics, blame anyone or any specific party, but equally we will not shy away from defending the rule of law,” said Kindiki.

But in response, President Kenyatta said his attention has been drawn to concerns that had been expressed following his assent to the Division of Revenue Bill, 2013 on 10th June 2013.

“I wish to clarify that in assenting to the Bill, I acted strictly within the law, in pursuance of the national interest and with a view to safeguarding the integrity and timeliness of the budgetary process” said Kenyatta.

He argued that as provided for in the Constitution, the consideration, debate and approval of bills, including the Division of Revenue Bill, is the mandate of the legislative arm of Government and not the Executive.

“However, as Kenyans are aware, disagreements have arisen between the National Assembly and the Senate over their respective roles in the Division of Revenue Bill 2013,” he said. President Kenyatta said that as the debate between the National Assembly and the Senate unfolds, his commitment to the success of the bicameral legislature remains steadfast.

“I will shortly commence consultations with the National Assembly, the Senate and other stakeholders in order to facilitate the speedy conclusion of the debate and arrive at a mutually agreeable way forward that is also in the national interest,” he said.

“Contrary to claims that have been made by some political leaders, my assent to the Division of Revenue Bill 2013 does not in any way undermine the devolution process,” he noted.

Uhuru said that following the stalemate between the two Houses of Parliament the options of the Executive under the law are limited to not acting at all, vetoing the Bill or assenting to it. The President said the first option would not have helped, as the Bill would still have become law after 14 days. Vetoing the Bill would similarly have led to further delays in the budgetary process. He said under the circumstances, the most prudent cause of action was to assent to the Bill in order to facilitate the timely conclusion of budgetary process and avert the risk of bringing Government business to a halt.

“Moreover, by not signing the Bill, we would have severely compromised the ability of county governments to take off in the very first year,” said Kenyatta. But nominated Senator Janet Ong’era warned the House would not compromise on devolution, which she said Kenyans overwhelmingly voted for in the Constitution.

“We are not ready to strangle our child, devolution, only three months into its existence,” Ong’era said, adding that their move should not be viewed as a supremacy battle with their National Assembly counterparts, but as a fight to protect devolution.

Defending decision

Siaya Senator James Orengo said it was within the mandate of the House to challenge the President’s decision. “In doing so we will be acting within the four walls of our Constitution,” Orengo said defending the decision to move to Supreme Court.

Busia Senator Amos Wako, who is also a former Attorney General, said those around President Kenyatta must have advised him wrongly. “I would not want to impute any ill motive by the President who has constantly promised to ensure that devolution takes root, but he must have been given the wrong advise,” said Wako.

Mandera Senator Billow Kerrow put the implications of the President’s move into perspective, saying it would leave 18 counties operating from a point of deficit unless it is overturned. The counties include Nairobi, Mombasa, Kisumu, Nyeri and Nakuru.

“We have discussed this with the (National) Treasury and warned them that unless Sh28 billion is added to the Sh210 billion that had been set to go to Counties by the National Assembly, 18 counties will not meet even obligations that were hitherto being paid by National Government,” said Kerrow.

Kerrow said it was unfortunate that MPs ignored this threat before rubbishing the amendments made to the Division of Revenue Bill by the Senate. Kindiki said that apart from moving to court, they would later today meet the Council of Governors and all Speakers of the county assemblies to cement unity over the matter.