Why senators failed to unlock stalemate on revenue formula

Thursday July 30 2020

Coast Civil Societies Reference Group Representative Zedekiah Adika of Kituo cha Sheria with other Members addressing the Press in Mombasa on the Senate's proposed formula on sharing resources. A series of blunders by top Jubilee and Nasa leaders precipitated the paralysis that rocked the Senate’s sixth attempt at adopting a new formula for sharing county revenue. PHOTO | KEVIN ODIT | NATION MEDIA GROUP


A series of blunders by top Jubilee and Nasa leaders precipitated the paralysis that rocked the Senate’s sixth attempt at adopting a new formula for sharing county revenue on Tuesday night, the Nation can reveal.

The House failed to make progress, much less pass the third basis of sharing Sh316.5 billion allocated to the 47 counties, even after extending its sitting into the night.

A parliamentary group meeting that never was, hands-off leaders, lack of a united approach to the matter, a series of amendments, calls to defer the motion and grandstanding saw the Tuesday debate adjourned before the formula could be enacted.

But the day just started on the wrong footing, especially for the divided Jubilee house, after a planned parliamentary group meeting to whip senators to back the formula aborted.


The meeting was to be chaired by President Kenyatta, who was expected to help whip Jubilee senators opposed to the new formula to toe the party line.


Minority Leader James Orengo (Siaya) did not have kind words for Mr Kenyatta as he accused him of being aloof at the time the House needed his guidance in the revenue impasse.

“We have lost our heads. We would not be here if the President was accessible. I’m not saying it for me, but for the country,” Mr Orengo said.

This failure saw Majority Chief Whip Irungu Kang’ata resort to calls and text messages to lobby lawmakers to adopt the report by the House Finance and Budget Committee on the Commission on Revenue Allocation (CRA) proposal.


But even as this happened, senators wondered why Majority Leader Samuel Poghisio (West Pokot) would be allowed to leave the country to the neighbouring Tanzania for the burial of former President Benjamin Mkapa.

“The seriousness of this matter required Senator Poghisio to be here as the Leader of Majority,” a Jubilee Senator, who didn’t wish to go on record, said.

“His absence and the fact that the President knew where he was at a crucial time, shows that the government is not committed to having this formula enacted. There are other government functionaries who should have travelled,” he added.

But as fate would have it, Mr Poghisio did not land in Tanzania as his plane was forced to turn back in unclear diplomatic circumstances and had the opportunity to be in the House late in the night.


“By the time he was coming back, a lot of water had gone under the bridge,” the senator further said.

The Finance Committee, chaired by Kirinyaga Senator Charles Kibiru, had its own weaknesses that largely contributed to the delayed enactment of the formula.

On three occasions, Mr Kibiru had failed to move the motion on the report as he made himself unavailable. Every time he was required to move the motion, he was nowhere to be seen — perhaps on instructions from some powerful forces, causing the House to adjourn.

Its own members — including Makueni Senator Mutula Kilonzo Junior — disagreed with the committee’s recommendations and proposed their own version of the formula, further complicating the matter.

As per the original CRA proposal, 28 counties are to gain while 19 are to lose out on the allocations, some losing billions of shillings.


The committee, upon considering the CRA proposal, reworked some of the parameters, whose adoption would have seen 29 counties benefit as 18 others lose.

However, a majority of senators, whose counties were either gaining or losing, led by Mr Kilonzo Junior, ganged up to oppose the committee report.

Senators Cleophas Malala (Kakamega), Sam Ongeri (Kisii), Johnson Sakaja (Nairobi), Anwar Oloititip (Lamu), Philip Mpaayei (Kajiado), Boniface Kabaka (Machakos) and Kipchumba Murkomen (Elgeyo Marakwet) opposed the committee’s report despite their counties gaining as per the CRA formula.

They supported the Kilonzo amendment, which, if adopted, would have ensured no counties lose out on their equitable shares.


“We were requested by the majority and minority leaders to look for a middle ground. We do not want to see some counties losing while others are gaining because that is not the spirit of devolution,” Mr Kilonzo said Wednesday.

“All counties must win because they serve the people of Kenya. If you analyse our proposal, no county is losing,” he added.

Ordinarily, by virtue of their leadership positions in the House, deputy leader of majority Fatuma Dullo (Isiolo) and deputy majority whip Farhiya Haji (nominated) were required to support the committee’s report. However, they ganged up to support Mr Kilonzo’s proposal.

Yesterday, the Makueni senator said that the government’s failure to give counties more funds as demanded by the Senate in the last two financial years was to blame for the stalemate.

“The third basis formula was predicated on shareable revenue of Sh345 billion or more. The minute we allowed the temptation to apply new data, new parameters on a figure that has remained constant for two years, we knowingly entered into a dark and slippery path to divisive and cantankerous debate,” he told the Nation.


The push for one method and not any other, he noted, created clear divisions that were characterised by the voting on Tuesday.

Suspicion and mistrust, he added, contributed to the emotional debates.

Jubilee’s Isaac Mwaura (nominated) termed the government side as disorganised. “It wasn’t clear to many what the defeat of the amendment meant,” he said.

“Some 2022 politics came to play and some people chose to play national, while others chose to defend their counties. In the end, we had to adjourn to get more consensus,” Mr Mwaura told the Nation.

As the clock ticks away, the enactment of the formula continues to remain divisive and elusive.

While senators, largely from the Mount Kenya region, are pushing for the one man, one vote, one shilling mantra, to influence the allocation, their colleagues from the sparsely populated counties want land mass to be the definitive parameter in revenue allocation.

“In sharing the devolved funds among the counties, population should be the main indicator,” Mr Kang’ata said.


Narok senator Ledama Olekina said that such hard-line positions as pushed by Mr Kang’ata will not help in resolving the stalemate.

“We want leaders to reason together for the sake of devolution because that is our core mandate as senators,” he said.

The CRA developed the formula as required by the Constitution and submitted it to the Senate on April 30, 2019.

This was to give the Senate enough time to consider the proposal, which is a radical shift from the first and second, as it expanded the parameters for the shareable revenue among the counties.

On Tuesday, House business became congested as Senators Kang’ata and Dr Ali Ibrahim (Wajir) among others also came up with their own proposals, eating into the time allotted for the Senate to transact its business for the day.


Not even a procedural motion to have the Senate sit until the matter before it is concluded could save the day as debate extended to 9pm — forcing Deputy Speaker Margaret Kamar to adjourn the sitting until August 4 at 2pm, in compliance with the 9pm to 5am curfew hours.

Initially, when he sensed that the matter was becoming divisive, Mr Orengo and Mr Moses Wetang’ula (Bungoma) tried to have a debate on the formula deferred.

But their proposal was resoundingly shot down as 40 senators against seven voted to oppose.

Yesterday, Mr Orengo noted that the authority and integrity of the Senate was better protected and safeguarded “if we did not rush to a decision when there’s an opportunity to close loopholes where there’s no general agreement,” the senator added.

However, Mr Kang’ata defended his opposition to deferring the matter to another sitting as proposed by Mr Orengo, noting that it was akin to postponing a problem, which “is not helpful to the country.”


According to the Standing Orders, the senators were required to finish all the preliminaries on the motion on the adoption of the Finance Committee report first before embarking on the substantive motion.

As time went by, the House was yet to deal with the proposal by Mr Kang’ata to have the implementation of the finance committee report deferred for two years.

A majority of the senators favoured the proposal by Mr Kilonzo that reworks the CRA formula so that no county loses money, which would later be moved by Mr Sakaja.

However, when the matter was put to the vote, 25 of the Senators voted to oppose the deferment as they rallied behind Kilonzo Junior’s proposal.