Battle lines drawn as Uhuru signs law on sharing of Sh210bn for counties

The turf wars between the two Houses has escalated dramatically as the Senate announced it would sue the National Assembly and President Uhuru Kenyatta in the Supreme Court.

Senate Majority Leader Kithure Kindiki told a news conference at the Kenyatta International Conference Centre last evening that the Upper House had decided to go to the Supreme Court this morning because, it believed the President had made a “grave mistake” in assenting to the contentious Division of Revenue Bill on Monday night.

“We believe that the action is against the law, and that it violates the Constitution fundamentally. We want to register our gravest concerns because it is an event like this that can trigger something which will undermine the rule of law in this country,” said Prof Kindiki.

Senate Speaker Ekwee Ethuro had appealed to President Kenyatta to reject the Bill forwarded to him by the National Assembly, but the plea was ignored.

The Senators have thus summoned all governors and all Speakers of the 47 county assemblies to Nairobi for a meeting to protest the president’s action. They said their meeting will be held at noon on Wednesday.

“We are united across party lines. We have deliberated on this matter and we know that is has monumental implications on the future of this country as governed under the devolved government regime,” said Prof Kindiki, accompanied by 54 senators.

He said the Senate had many lawyers who will help it prosecute the matter at the Supreme Court, and they were sure they had a case, more so, because the Division of Revenue Bill was the mother law for the sharing of resources between the national government and the 47 county governments.

The news that the President had signed the Bill was broken in the National Assembly on Tuesday shortly after an attempt by Suba MP John Mbadi to stop debate on the Budget and Appropriations Committee’s report on the estimates presented by the three arms of government.

Mr Mbadi had sought to have the debate stopped because the Public Finance Management Act states that the committee’s report can only be debated with the Division of Revenue Act in place.

Important decision

It was then that Majority Leader Aden Duale informed the House that the Act had been signed by the President.

Speaker Justin Muturi confirmed this immediately and said President Kenyatta had assented to it at 9.30pm on Monday night.

There had been no official communication from State House as is the norm when the President makes an important decision.

Last evening, the President said he “acted strictly within the law, in pursuance of the national interest and with a view to safeguarding the integrity and timeliness of the budgetary process.”

“In the aftermath of the stalemate between the two Houses...the options of the Executive under the law are limited to not acting at all, vetoing the Bill or Assenting to the Bill. The option of not acting at all would not help the situation as the Bill would become law after 14 days; while vetoing the Bill would similarly have led to further delays in the budgetary process. In the circumstances, the most prudent cause of action was to assent to the Bill in order to facilitate the timely conclusion of budgetary process and avert the risk of bringing Government business to a halt,” he said.

The President said he would initiate negotiations between the two Houses.

President Kenyatta’s assent of the Division of Revenue Bill means that the 47 counties will share Sh210 billion as approved by the National Assembly and not the Sh258 billion that the Senate wanted.

With the Act now in place, the National Assembly last evening approved changes to the Budget estimates, setting the stage for the presentation of the Budget statement in the House on Thursday by the Treasury Cabinet Secretary.

Some MPs contributing to debate on the Budget Committee’s report took the President’s action as a statement on the supremacy wars between the two Houses.

Mr Duale said it would be unhealthy to politicise the argument between the two Houses as to who has more power in determining how much the national and county governments ought to get.

“Let my older brothers in the Senate tell the country under what category the Division of Revenue Bill falls. Is it a money Bill or a special Bill?”

He said the National Assembly also ought to create the necessary ways to make devolution achievable.

Mr Chris Wamalwa (Kiminini, Ford Kenya) said the President’s decision doesn’t make the Senate impotent. “It confirms we are an upper House for that matter.”

Opiyo Wandayi said the impression created throughout the debate over the Bill was that the National Assembly was against devolution and that MPs should work hard to change that.

He said although the National Assembly’s actions were lawful and legal, it would still not be logical for the Senate to be excluded from the method of dividing revenue.

“For us not to be seen to be sterile, let the government bring an amendment to the Constitution so that the Senate can cease to be involved in the division of revenue,” he added.

In the Senate, Mr Billow Kerrow (Mandera) said the Senate was not contesting the figures, but the process.

“If it was about the money, the National Assembly and the Executive would have come to us and sought an explanation of why we want Sh258 billion and not Sh210 billion as they had proposed,” said Mr Kerrow, who also chairs the Senate Committee on Finance, Commerce and Economic Affairs.

Mr Kerrow said the extra Sh48 billion that the Senate had included was to ensure the service delivery in 18 counties was not hampered when the national government pulled out. The senators made their decision based on an advisory from the Parliamentary Budget Office.

“We’re actually going to set these counties up for failure,” said Mr Kerrow.

Former Attorney General Amos Wako, who is also the senator of Busia, and former Justice Minister Kiraitu Murungi, now Meru Senator, said the Constitution allowed any State Organ to go to court in cases where there was a breach of the Constitution was evident.

“What the President has done by assenting to the Division of Revenue Bill is that he’s confirming the wrong interpretation of the Constitution, the wrong view that the National Assembly has held, that the Senate has no role in discussing the Division of Revenue Bill. We’re taking it to court for the correct interpretation,” said Mr Wako.

Presenting the report of the Budget and Appropriations Committee to the National Assembly for debate, committee chairman Mutava Musyimi said this year’s budget is the highest this country has ever witnessed.

The total combined budget presented to the National Assembly amounts to Sh1.642 trillion.

He explained how his team had reached at decisions to cut down budget proposals of some sectors and departments.

He said the public debt has more than doubled in the last decade and that the government must find ways of cutting down on expenditure while boosting production.

The committee chairperson said the huge financing gap was a major cause of concern and should be taken seriously by the government.

According to the Budget Office of Parliament, the stock of public debt has more than doubled in the last decade growing from Sh749.5 billion in June 2005 to Sh1,793.2 billion as at December 2012.

According to Rev Musyimi, the government has focused a lot on increasing government expenditure as opposed to creating surplus and allowing a private sector led economic growth.

The Budget and Appropriations committee, in determining the estimates gathered views from members of the public in various parts of the country before making recommendations that including denying some budget requests and drastically slashing down others, including that of the Parliamentary Service Commission.

It also included considerations made by the various House departmental committees that also scrutinised budget estimates of various sectors and made proposals.

Moving the motion to open debate of the report on the floor, Rev Musyimi said there is need for the government to be more creative on ways of raising revenue by reducing corruption levels and cutting on expenditure.

He said the committee’s proposals were meant to free more money and make it available for development votes.

Reported by Alphonce Shiundu, Caroline Wafula and John Ngirachu