Controversy emerges over county allocation Act

By Alphonce Shiundu

Controversy has emerged over a Bill recently signed into law by President Uhuru Kenyatta for allocation of funds among counties, with claims it contains an unconstitutional clause.

The National Treasury should not pay for functions in the counties as provided for in the County Allocation of Revenue Act as it contravenes the Constitution, Suba MP John Mbadi said.

Commission on the Implementation of the Constitution (CIC) Commissioner Kamotho Waiganjo also termed as unreasonable and against the Constitution to provide that if a county fails to meet its budgetary obligations, the national government will supplement the consequent deficit.

Mbadi, who sits on the Budget and Appropriations Committee of the national assembly, said the provision in the Act that where counties run out of money to perform their functions, then the national government ought to intervene, was “unconstitutional and dangerous”.

“That clause is unconstitutional, and I hope no State organ will implement it. The Constitution is very clear that if there’s anything that is contrary to it, it is null and void. There’s no cause for worry. The National Treasury should not respect that clause,” said Mbadi.

Plea To Treasury

The plea to the Treasury comes barely a week after President Uhuru Kenyatta signed the County Allocation of Revenue Bill into law.

It is that piece of legislation that has a clause ordering the national government to pay for services in the counties whenever they run out of money.

Mr Mbadi asked Deputy President William Ruto to convene the Inter-governmental Budget and Economic Council, with a view to determine the cost of all devolved services.

Mr Ruto is the chairman of the council, on which governors, county executive members in charge of Finance, the Commission for Revenue Allocation and the Transition Authority all sit.

“There’s no way we can speak of deficits in the budgets for the counties when we do not even know how much it costs to deliver the services. Let’s not starve counties of cash, but let us also not encourage them to spend carelessly,” argued Mbadi.

TA was tasked with costing the functions, but failed to do so.

No Business

“The national government has no business giving the counties money when that is not provided for in the Division of Revenue Act, where we shared the revenues between the national government and the 47 county governments,” he told The Standard.

The call for the Treasury to ignore the clause follows in the footsteps of a red flag raised by CIC just before the President assented to the Bill.

The commission had asked President Uhuru to return the Bill to the national assembly for the unconstitutionality to be “cured”.

The Budget and Appropriations Committee had wanted that clause deleted in the House, but it failed to raise the 233 MPs required to alter the crucial Bill that had come from the Senate.

The Bill prescribes how money - Sh210 billion - will be shared among the 47 county governments. Both the National Assembly and the Senate are on recess.

Yesterday, Waiganjo reiterated that the clause was unconstitutional, even though the Senate really wanted to make sure that the counties do not fail in the delivery of services.