Sh15bn NMS budget: Sonko and Elachi's supremacy battle rages on

City Speaker Beatrice Elachi has vetoed Governor Mike Sonko's memorandum on a bill allocating Sh15 billion to the Nairobi Metropolitan Services (NMS) and returned it back to him for assent.

Ms Elachi's move on Friday escalated her war with the governor over Supplementary Appropriations Bill, 2020, which the assembly approved on April 2 and sent to Sonko for his signature.

He rejected it on Wednesday, accusing MCAs of appropriating funds to functions not transferred to the NMS in the Nairobi takeover plan and sent the bill back to the House with reservations that he wanted amended.

In her response, Speaker Elachi set aside the memorandum in its entirety, declining to commit it to the Committee of the Whole Assembly as required by the law.

She defended her ruling saying the bill's urgency was considered alongside prevailing circumstances precipitated by the Covid-19 pandemic and gave the governor seven days to sign it.

THE PROCEDURE

According to Nairobi City County Assembly Standing Orders 146, whenever a governor refers a bill back to the assembly, the Speaker shall notify the House.

The Speaker will then commit the memorandum to the relevant committee for consideration within 21 days by tabling its report on its consideration with recommendations.

The reservations or recommendations from the governor, together with proposed amendments by the committee, shall be part of the Order Paper for the sitting day set aside for consideration of the governor’s memorandum.

The decision of the House shall then be communicated back to the governor.

Standing Order 145 goes on to state that the assembly can either amend the bill, taking into account the issues raised by the governor, or pass it without amendment.

If the assembly amends while considering the county chief's issues, the Speaker shall within 14 days submit it to the governor for assent.

But if the county assembly passes the bill a second time, without amendments or with amendments which do not accommodate the governor’s concerns, by a vote supported by two thirds of MCA, the Speaker shall within seven days re-submit the bill to the Governor and the governor shall within seven days assent to it.

“If the governor does not assent to a bill or refer it back within the period referred to under this section, the bill shall be taken to have been assented to on the expiry of that period,” reads the section.

REQUIREMENTS

For the assembly to overturn the memorandum or add to the bill, the two thirds majority, in this case at least 81 MCAs, will be needed but if it is to approve Sonko’s recommendations then only a simple majority will be needed.

Nevertheless, Ms Elachi defended her ruling pointing out that Sonko’s memorandum entirely raised questions of constitutional and legal interpretations that required her determination.

She used the precedent set by former Speaker Alex Magelo in a ruling delivered on May 17, 2017, in which he overruled six reservations by former Governor Evans Kidero, referring only one reservation to the relevant committee and subsequently to the Committee of the Whole Assembly.

She noted that as the Speaker, she has the power to interpret questions that require constitutional interpretation.

In his reservations, Governor Sonko accused the assembly of failing to consult his Finance minister before coming up with the appropriations, contrary to provisions of section 131 (2) of the Public Finance Management Act and section 21(3) of the County Governments Act.

He also accused the MCAs of contravening section 113 of Public Finance Management (PFM) Act, which states that Finance CEC cannot make payments out of the emergency fund exceeding two per cent of the figure in the previous year's audited accounts.

This was after the assembly allocated Sh1.025 billion as the emergency fund for coronavirus interventions.

Sonko said the allocation was way above the recommended Sh520.2 million, which is two per cent of the consolidated revenue collection of Sh26.01 billion that the county reported in financial year 2018/19's audited accounts

The City Hall boss subsequently reduced the allocation to Sh520 million.

"FATAL FLAWS"

Ms Elachi termed the governor's arguments “fatally flawed", arguing the bill originated from the Executive and was considered by the Select Committee on Budget and Appropriation, in accordance with assembly practices

She also said the views of the Finance executive were sought.

“It is important to also note that the committee is not bound to agree with the views of the County Executive Committee (CEC) member neither is the CEC bound to respond,” she said.

She also said the assembly did not violate the PFM Act in allocating the Sh1 billion for emergencies and that the law does limit the amounts the assembly can set for emergencies.

The former nominated senator further explained that the assembly, in its own wisdom, deemed it fit to allocate the fund to cater for all Covid-19 challenges, considering the country is operating under unprecedented situations occasioned by the pandemic.

On issues pertaining to the Deed of Transfer of Functions, Speaker Elachi said Sonko had time to amend it before it took effect but that he did not do so.

She said that according to the agreement, transferred functions included health services; transport services; planning and development, public works, utilities and ancillary services which included human resource, security and enforcement, accounting and finance and legal services.

TRANSFERRED FUNCTIONS

Sonko accused the assembly of attempting to transfer functions that were not part of the Deed of Transfer.

He argued that the assembly irregularly transferred and allocated the monies in the bill even to functions that were never transferred to the new office.

The governor cited security and safety management; disaster management coordination; information and communication services; public financial management; and economic and financial policy formulation and management.

He also cited public service transformation; general administrative services; food systems and surveillance, afforestation and animal health, safety and quality assurance.

Governor Sonko contended that the ancillary or support services were to be identified and transferred on a need basis after evaluation by the County Public Service Board and the Public Service Commission.

Therefore, he said, the proposed allocations contrary to the Deed of Transfer which though provided for ancillary services and did not contemplate the whole outright transfer of the listed functions.

But quoting article 187 of the Constitution, which requires that resources follow functions, Ms Elachi said that had the assembly done the opposite, it would have set up the NMS office for failure even before it started its work.

“Further, the Deed of Transfer provided for a 21-day period within which both the national and the county government would raise any reservations and amend the deed before it became effective," she said.

"It is important to note that the governor did not raise his reservations during this window."

Speaker Elachi adjourned assembly sittings until June.