A leaked letter from the Presidency advising the Attorney General on how to deal with the Division of Revenue Bill row between the National Assembly and the Senate has sparked a furious exchange of words between top aides of President Uhuru Kenyatta and those of his deputy William Ruto.
State House sparked the row yesterday after it disowned the letter indicated as having been authored by a senior Treasury official, who works from the DP’s office, saying “it is not genuine” and “does not represent the views of the President.”
The controversial advisory, which is printed on ‘The Presidency’ letterhead and dated July 3, had attempted to address the division of revenue stalemate with a plea to the AG to take a political approach to resolve the matter.
“The purpose of this note is to bring this matter to your attention and request withholding of gazetting of the said Warrant Authority and to urgently initiate a political process to have the Division of Revenue Bill and County Allocation of Revenue Bill enacted into law so as to operationalise the funds…,” the note, signed by Justus Nyamunga, the Secretary, Budget and Policy Strategy, reads.
But a senior official in the President’s office dismissed the letter as a “forgery” even as another in Dr Ruto’s office sarcastically wondered how State House could disown a letter bearing its own letterhead.
Ruto’s aides also denied State House’s claim that the author of the letter works in the DP’s office, insisting he has a position in the Office of the President.
The note is addressed to the Attorney General and is printed on the letterhead of The Presidency, Executive Office of the President, Chief of Staff and Head of Public Service.
It sought to advise the AG on the technical aspects of the Division of Revenue Bill stalemate, which guide division of cash between the national and county governments.
Failure to unlock the impasse saw governors stage protests in Nairobi as they moved to file a case in the Supreme Court challenging the legality of the ongoing financing of the National government to the exclusion of county governments.
Governors and Senators insist the counties are entitled to Sh335 billion that Commission on Revenue Allocation gave them and not the Sh316 billion set aside by Parliament.
The letter seeks to raise concerns that it would be unconstitutional to withdraw funds from the Consolidated Fund to finance government operations pursuant to the Appropriations Act signed by Uhuru.
Also, the author cites sections of the Constitution that would be violated if the President’s directive - to withdraw funds for government spending - was implemented in the absence of Division of Revenue Bill and County Allocation of Revenue Bill that guides division of the cash among counties.
Yesterday Ruto tweeted saying there was a deal with governors on the county cash that would now facilitate republication of the Bill that collapsed last month following a disagreement between the two Houses. The DP has announced that he has been leading efforts to broker a deal to end the standoff.
It would appear State House was furious with the letter that seemed to imply the President was having doubts on the legality of the Appropriations Act that he assented to.
Governors and Senators have also argued that it is illegal to appropriate funds from the Consolidated Fund in the absence of the Division of Revenue Act.
“Nyamunga works in the DP’s office as an advisor. This letter is not genuine and does not represent views of the President,” a top State House aide declared.
But a DP’s aide, Emmanuel Talam, denied that the letter originated from their office.
“That letter doesn’t originate from the DP’s office. Whoever is making the allegation must state the real agenda they are executing,” Mr Talam said.
The State House official said the office of Chief of Staff and that of the Head of Public Service were separated in January last year and official letterheads changed when Uhuru rearranged his administration to back up his view that the letterhead was bogus.
When contacted, the President’s Chief of Staff Nzioka Waita directed us to take the concerns to Treasury CS Henry Rotich, saying he was the one directly handling the matter.
The Council of Governors (CoG) was also taken aback by the latest development over the authenticity of the letters, even as senators indicated the arguments advanced would be useful in their case challenging the Appropriation Act.
In the alleged letter, Nyamunga writes, “accordingly, without the passing into law, the Division of Revenue Bill and County Allocation of Revenue Bill that operationalises the funds under Articles 204, 206 and 207, it might be legally and technically difficult to effect appropriation as envisaged under Articles 222, 223 and 224.”
“This might also represent legal difficulties for the Controller of Budget under Article 228(4) to authorise the withdrawal from non-operationalised funds under cited Articles in law and any such public funds.”
Nyamunga cautions that in view of the stipulated Articles, the Controller of Budget might be constrained by Articles 228(4) and 249(1).
“It is our considered view that issuance of the Warrant Authority by the President for withdrawal of money from the Consolidated Fund in accordance to the Constitution may not only be legally tenable but also offends Article 131(2) (a).”
“The purpose of this note, therefore, is to bring this matter to your attention and to request the withholding of gazetting of the said Warrant Authority and to urgently initiate a political process to have the Division of Revenue and County Allocation of Revenue enacted into law,” the letter reads.
In a hand-written note on the disputed letter, Nyamunga reminds Senior Principal Parliamentary counsel at office of the AG Fred Mwachi of their discussion on July 4. “Please look up the law and brief the AG. Consult therein, Treasury and Parliament.”
The AG, through Mwachi, subsequently wrote to Treasury PS Kamau Thugge, Senate Clerk Jeremiah Nyegenye and his National Assembly counterpart Michael Sialai seeking their input on the matter.
“To this end, our office has received a concern from the Executive Office of the President, in their letter No OP/CAB/BPS.2/9/1(1) dated July 3, in respect of the legal effect of this current situation to the withdrawal of funds under the Appropriation Act assented to by the President,” reads the letter by Mwachi dated July 9.
It added: “We are in the process of drafting a legal advisory for the AG’s consideration and we wish to bring you onboard being institutions of interest in this matter. We will be pleased to have your views for response and direction.”
He wrote: “We take the liberty to enclose the said communication from the office of the President for your ease of reference.”