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Judges reject senators’ control of county funds
From left: Governors Ken Lusaka (Bungoma), Wycliffe Oparanya (Kakamega) and Julius Malombe (Kitui) follow proceedings during a past summit at the Enashipai Resort and Spa in Naivasha. County bosses now want Parliament and the National Treasury to urgently put in place the missing legal framework allowing them to borrow funds from external sources. FILE PHOTO |
What you need to know:
- New law required Senate members to chair entities.
- Judges say lawmakers have no business sitting on boards responsible for projects in the 47 regions.
Governors have won a major battle against senators and MPs over the control of billions of shillings allocated to counties for development projects.
This comes after High Court judges Isaac Lenaola, Mumbi Ngugi and George Odunga dashed the lawmakers’ hopes of sitting on County Development Boards.
“Senators, MPs and county commissioners have no business sitting on the county development boards. Any law allowing them to be members of the boards is unconstitutional and against the spirit of devolution,” ruled the judges.
Senators passed a law creating a county development board in each of the 47 devolved units. According to the legislation, the boards were to be chaired by senators, while governors were to serve as secretaries.
According to the law, introduced by Nandi Senator Stephen Sang, MPs, members of county assemblies, and representatives of the national government (county commissioners) were also to sit on the board.
The judges, however, ruled on Friday that the Act created an illegal entity, whose composition would interfere with the mandate of county governments.
“The Act is pathetically wrong as far as devolution is concerned. Its contents undermine the gains achieved so far through devolution and it cannot stand,” ruled the judges.
They added that the Act violates the doctrine of separation of powers as it enables senators, MPs and the national government to extend their mandate where they have no jurisdiction.
'NO MANDATE'
According to the judges, the role of senators is to oversee county governments and protect them at the national level.
They said the duties of MPs are to oversee and supervise the national government.
“Therefore, they cannot purport to involve themselves in the running of county governments in a clear case where they have no mandate. They should concentrate on their oversight and supervisory roles,” said the judges.
The approval of the new law sparked disagreements between county bosses and senators, with the Council of Governors moving to court to have it declared null and void.
According to governors, the law was meant to clip their powers and stall development projects they had initiated in counties.
The judges agreed with their submissions that one of the functions of the development board would be to consider a county’s budget. They said this would amount to interference with the functions of the county executive members.
“Oversight authority does not mean executing the duties of county executives. The Senate cannot dismantle the architects of devolution through legislation. Any statute that threatens to weaken devolution is unconstitutional,” they said.
Governors had described the decision by senators to pass the Act as ill-advised, arguing that it was a plot to usurp their powers and manage counties through the back door.
According to the governors, the senators failed to understand the structure of separation of powers since the new development boards would have created a new centre of power within counties.
