Legislature's clout severely under utilised

One of the more significant changes wrought by our Constitution is the power shift from the Executive to the Legislature in budget making. There had been some subtle assaults on the Executive's power over budget prior to 2010; the most significant being the passage of the 2003 Constituency Development Fund Act which automatically reserved 2.5 per cent of the budget for MPs to manage. The passage of the Government Financial Management Act in 2004 and the institutional strengthening of the Parliamentary Budget Office marked a significant step in liberalising the public finance management architecture.

Parliament's budget approval role was otherwise a formality, the numbers presented by the Treasury were always fait accompli. Nothing emphasised this power arrangement more than the constitutional restriction of Parliament introducing any money bill on the floor unless it had been consented to by the President himself! This position was fundamentally revised by the new Constitution which made Parliament the pre-eminent actor in the budget process. In Article 221 for example, the Executive presents budget estimates to Parliament by April 30 to give Parliament time to collect views from the public, make adjustments to the estimates as it deems necessary, and pass the revised budget by the end of the financial year.

Even the money bill restriction has been dropped; all that Parliament is required to do is to consider the views of the Cabinet Secretary Finance before passing a money bill. The Public Finance Management Act has replicated these same powers to County Assemblies. Consequently, in the counties, the final say in the budget allocations is not the Executive but the County Assemblies. The theory behind this arrangement was that as representatives of the people, the legislature was best suited to make decisions on how the people's resources would be utilised.

One year into this arrangement the jury is still out on whether it has improved the public finance environment or created new problems. Without doubt, the increased public participation in the budget process has improved transparency and prudence in decision-making. The democratisation of the revenue allocation, which now involves a multiplicity of players, can only enrich this critical component of good governance.

Of course it has helped that the Budget Committee has a fairly rational and reasonable chair in Mutava Musyimi. There are, however, challenges to this process, made most obvious in the County Assemblies but nonetheless existing in the national legislature. The most obvious one is the implications of converting the Legislature from a budget approving to a budget making organ. In the current arrangement, the legislature can ignore any budget proposals from the Executive, rework the Executive's project financing priorities and approve an entirely different package from that recommended by the Executive. The law contains no incentive for the Legislature to consult with the Executive on the budget! Imagine the frustration of an Executive that has to approve a budget it did not make and that does not accord with its priorities! Imagine the very likely scenario where the Executive did not command a majority in the House, it could be required to implement the budget of the Opposition! More dangerous is the power given by this architecture for Parliament to approve its own allocation. In the counties this has led to some County Assemblies allocating themselves up to half of the budget yet the implementation of county functions belong to the Executive.

It is no wonder that so much money is being spent on wasteful expenditure including non-essential "bench marking" tours. I would be curious to see how much Parliament spends on travel; most of my friends in the House are always on a trip or other! The growth of the CDF and the new kid on the block, the Ward Development Fund, are a consequence of this arrangement. Did we go wrong in removing the tyranny of the Treasury and donating it to the Legislature? I don't believe so. But like all constitutional powers, it is a power that the Legislature must exercise prudently, cautiously and with utmost regard for its ultimate objective; the welfare of Kenyans.