The battle between governors and National Assembly over allocation of funds is now in the hands of the Chief Justice David Maraga-led Supreme Court.
The governors’ hopes of unlocking the stalemate over division of revenue, which has led to near paralysis in some counties, rests with the top court after mediation talks to break the impasse collapsed.
The Council of Governors (CoG) wants the apex court’s advisory opinion on how the 47 counties should share revenue from the national government and resolve the perennial superiority conflict between Senate and National Assembly over budgetary allocation to counties.
At the centre of the dispute is Sh310 billion allocated to counties. The Senate had proposed Sh335 billion while the National Assembly approved Sh316 billion. A mediation committee settled on Sh327 billion, but the CoG claimed the Treasury has refused to release the funds.
CoG has raised 25 key questions they want the Supreme Court to determine while reigniting another fight with the national government over management of billion of shillings allocated to various State agencies within the counties.
Led by CoG chairman Wycliffe Oparanya, the over 25 governors marched to the Supreme Court to present their petition and declared they will not sit back as MPs cripple operations in counties.
“It is devolution which is under attack given that very few counties have managed to pass their budgets without the funds. We tried mediation, but it collapsed leaving us with no option after the National Assembly decided to desert us and go on recess without a solution,” said Oparanya.
Among issues they want the court to decide on is whether bills passed by National Assembly on devolved functions without the Senate’s input are constitutional.
Should the Supreme Court agree with them that the Senate must be involved in bills touching on devolved governments, then it will be back to the drawing board as several contested laws already signed by President Uhuru Kenyatta will be declared unconstitutional, null and void.
Through lawyers Issa Mansur and Peter Wanyama, the governors argued that they have been reduced to bystanders as the national government splashes billions of shillings on projects in their counties while refusing to release money for the counties’ development projects.
“This matter is urgent as it cripples operations of counties. The people want services, but this is not possible without financial support. At present, devolution is dying as the national government is not committed to implementing it at all,” said Mansur.
They accused the National Assembly of ignoring the Senate in passing the Division of Revenue Bill, which has led to underfunding in counties compared to government ministries whose budgets are rising every financial year.
On the issue of conflict between national and county governments, the lawyers claim money meant to be channeled to counties is diverted to other projects such as road maintenance and housing which is their reserve.
“Governors cannot carry out some developments because they conflict with the national government but the public do not understand that. The court should advise if national government can retain and fund the devolved functions,” said Mansur.
Deputy registrar Daniel Ole Keiwua certified the application as urgent. It will be heard on Friday.