High Court blocks Senators, MPs from county boards

High Court judges Isaac Lenaola (pictured) and Mumbi Ngugi ruled that Senate and Parliament's presence in the CBD violated the spirit of devolution

The High Court has locked out Senators and Members of the National Assembly from playing any role at the County Development Boards (CDB).

The decision by High Court judges Isaac Lenaola and Mumbi Ngugi nullified the County Government Amendment Bill 2014 meaning that members of the two Houses of Parliament will not set a foot in the boards that determine where monies allocated to the devolved systems will be channelled to.

"The Senate and Parliament's presence in the CBD violated the spirit of devolution. The amendment is thus null and void," the judges ruled.

Deputise senators

The Senate had already backed changes to the Bill that would make them chairs of CBDs. In turn the Bill would have seen governors deputise senators in the boards.

The upper house created a board which would be chaired by a senator and comprise a County Woman Representative and the elected MPs in the constituencies within the county.

Speaker of the County Assembly, the Majority and Minority leaders in the assemblies, the chairperson of the County Public Service Board, the chairmen of the County Assembly committees in charge of Planning, Finance and Budget would be other members.

The judges ruled the move was against the rule of the land and would water down meaning of devolved system of governments.

"Altering the structures of devolution is against the spirit and the intent of the drafters of the Constitution. The Senate and Parliament cannot sit in the boards as they were not intended to be a part of it," justices Lenaola and Ngugi ruled.

The initial Bill had designated governors as board secretaries, but Members of the National Assembly argued that by so doing, governors would be ceding their constitutional authority as Chief Executives of the counties to senators.

In the deal MPs won a concession excluding nominated senators and MPs from the membership of the boards.

The senators' desire to chair the committees was informed by their constitutional mandate of oversight over county governments.

The house held that governors were appropriating funds for functions that belong to the national government.

However, the governors in their case argued that the enactment of the bill would lead to creation of duties and roles that already existed and were accounted for in the County Government Act.

In regards to power wars between senators and governors in regards to money management, governors stated that the Bill sought to undermine not only their powers but also their participation in the county budget making process.

Decision makers

It was contended that neither the senators nor MPs sat in the County Assembly thus their role in the boards would have been that of a stranger managing the affairs of the decision makers.

In defence, the Senate argued the amendments proposed by the mediation committee would give senators a say in the running of the counties and ensure governors spend on relevant projects.

"The Senate has powers to scrutinise and ensure that the counties spend the money allocated to them well. The amendments were within the oversight role given to the Senate thus it cannot be argued that it is unconstitutional," the court heard.

The judges noted that the national government and counties are distinct entities adding that the composition of the boards abused the mandate of the latter in managing the affairs of the county.