The Office of the Attorney-General has now summoned a crisis meeting with representatives from the National Assembly, Senate and National Treasury after it emerged that the government risks shut-down due to delayed passage of the Division of Revenue Bill (DoRB).
Though the date for the meeting is not indicated, the move by Mr Fred Mwachi, a senior parliamentary counsel at the department of justice in the AG’s office, comes as the Budget Office at State House raised a red alert.
In a letter to Attorney-General Kihara Kariuki, Mr Justus Nyamunga, the secretary, Budget and Policy Strategy at State House, wants President Kenyatta to delay the issuance of the warrant authority for the withdrawal of Sh1.92 trillion from the consolidated fund as appropriated by MPs.
He says that the withdrawal can only happen and be seen to be constitutional only after Parliament has enacted the Division of Revenue Bill and that on County Allocation of Revenue.
Mr Mwachi says that the State Law office has been forced to act after the Office of the President raised concerns on the legal effect of the stalemate on withdrawal of the funds.
“We’re in the process of drafting a legal advisory for the Attorney-General’s consideration and wish to bring to you, being institutions of interest in that matter, we will be pleased to have your views for our comprehensive response and direction,” Mr Mwachi says in the letter dated July 9.
The State Law office waded into the issue even as the rift between the two Houses deteriorated further with the two Houses proposing two different versions of the Bill.
It has emerged that the Senate has, through Mandera Senator Mohamud Maalim, who chairs the House Committee on Budget and Finance, republished the Bill, setting out Sh335 billion as the funds due to counties in equitable shareable revenue.
The Senate figure is per the recommendations of the Commission on Revenue Allocation (CRA).
The decision of the Senate came just a day after Kikuyu MP Kimani Ichung’wah, the chairman of the Budget and Appropriations Committee of the National Assembly, republished a version with Sh316 billion as the figure due to the counties.
But as this haggling continues, the situation at the devolved, units that are already facing a financial crunch, can only get worse.
Counties pass their budgets and finance bills based on the DoRB which divides revenue between the two levels of government — national and the 47 counties.
Mr Nyamunga argues that the withdrawal of the funds from the CFS in the present circumstances may not only be legally untenable but offend article 131 (2) (a) of the Constitution, which provides that the President shall respect, uphold and safeguard the Constitution.
“The purpose of this note therefore, is to bring this matter to your attention and to request the withholding of gazetting of the warrant authority and to urgently initiate a political process to have the bills enacted into laws so as to operationalize the funds,” he says in the letter dated July 3, 2019.
He observes that without passing into law the two bills, it may be legally and technically difficult to effect appropriation of the funds as approved by the National Assembly.
Mr Nyamunga warned that if the Attorney General goes ahead to gazette the warrant authority, the Controller of Budget (CoB) may be constrained by the constitution to authorize the withdrawal of the funds.
He says that without passing into law the two bills, it may be legally and technically difficult to effect appropriation of the funds as approved by the National Assembly.
The constitution in Article 218 envisages the enactment of the two bills into law before April 30, of every year for vertical share of revenue between the national and county governments, and horizontal share among the 47 counties respectively.
The DoRB flopped last month at the mediation level after the two Houses of parliament failed to agree on the equitable sharable revenue to the county governments as operations at the counties run the risk of grounding to a halt.
At the mediation level, the National Assembly sought to have the Sh310 billion as published by the National Treasury increased by Sh6 billion but the Senate stood at Sh327 billion, a climb-down from the Sh335 billion.