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The other institutions that enjoyed seeing counties suffering

By Kamotho Waiganjo | September 19th 2020 at 00:00:00 GMT +0300

The visceral and vicious reaction by Senators, many of whom we generally consider sound and informed on matters devolution, against the COG notification that counties would shut down certain services in view of the lack of exchequer releases is unfortunate.

The reaction missed the point that this crisis revealed a fundamental threat to devolution and simplistically assumed that Governors were just playing to the gallery in their political contest with Senators. Fortunately, it appears that it catalysed the Senate to deal with the matter with the urgency it had demanded all along since the CRA proposal was sent to the Senate well over a year ago.  

What the Senators should have focused on is why such a monumental crisis has been treated so casually and what that attitude portends for devolution generally. Since the onset of devolution, the annual delay in passage of the County Allocation of Revenue Act has become predictable.

Fortunately, delays in the early years were generally resolved within the first one or two months of the financial year and counties learnt to hobble along for these months until the matter was resolved. This year’s failure to agree on the applicable division of revenue formula, which has resulted in the non-passage of the CARA, follows a practice where counties are financially crippled with predictable regularity. Whether it is the reduced allocations or delayed releases of exchequer, counties have been stumbling along generally unable to meet their obligations thus painting devolution negatively.

It is now the third month since the financial year ended, which was the last time counties received any monies from the Treasury. That means since June most counties have not paid their workers. They have not paid suppliers.

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This crisis is the ultimate evidence of the contempt with which the national government institutions hold devolved units. If the delay in passage of enabling legislation would have resulted in civil servants in the national government ministries not being paid for three months, this would have been a national emergency. A solution would have been found.

While the instinctive reaction has been to blame the Senate, that reaction is simplistic. Legislators are entitled, in the discharge of their functions to disagreements and delay in passage of laws. One of course hopes that on such a serious issue, Senators would be inspired to put aside political differences disguised as fights on principle. 

The constitution and various laws in any event anticipate such delays and provide fallbacks to ensure services to the public do not suffer.

In Article 222, the constitution provides for release of 50% of the budget to the national government if there is a delay in the passage of the Appropriation Act. In similar vein, Section 134 of the PFM Regulations provide that where the CARA is not passed by the beginning of the financial year, the Controller of Budget may authorise release of 50% of the last years allocation to the counties.

In the Supreme Court Advisory issued earlier this year the court declared that disagreements within the legislature should not prejudice the provision of services in the counties. They ordered that in the case of delay of the Division of Revenue Act, whose effect is similar to the current scenario, 50% of the last year allocation be released to the counties to enable them offer services.

Unfortunately, despite these clear directions, national level institutions including the Controller of Budget, the Attorney General and the National Treasury have for three months refused to provide the solution and instead watched devolved units suffer intolerably.

This may have served whatever short term objectives may be on the table but the crippling of devolution, despite its many failings, may one of final nails in killing Kenya’s sustainability as a Nation State. Final word to the Honourable Senators; did you at any time during this crisis consider that this crisis may be engineered by devolution’s detractors to complete the narrative that we do not need a Senate as we head to amendment of the Constitution? May more wisdom prevail in future debates on national issues, even as we rejoice that this stalemate is now behind us.

- The writer is an advocate of the High Court of Kenya


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