Counties cash law hallmark of leaders row
The stalemate over the Division of Revenue Bill, 2019, was one of the hallmarks that heightened sibling rivalry between the Senate and the National Assembly this year.
For more than two months, the two houses of Parliament which have been embroiled in wrangles for the better part of the year, could not reach a consensus on the allocation of monies devolved units will get in the 2019/20 fiscal year.
The annual division of revenue provides for the equitable division of revenue raised nationally between the National and County governments in accordance with Articles 203 and 218 of the Constitution.
“As representatives of Kenyans, it is disappointing to see our leaders getting caught up in supremacy battles and losing sight of why they were elected in the first place,” Mzalendo trust, an online platform that tracks the performance of Senators and MPs, said in a press statement dated August 26, 2019.
While the Senators demanded counties to be given Sh335 billion, their National Assembly counterparts stuck to Sh314 billion as share of revenue.
The National Treasury had allocated Sh310 billion, down from Sh314 billion that counties received in the previous financial year 2018/19.
This decision escalating to unpleasant heights as it turned the two Houses against each other.
The differences forced Senate Speaker Kenneth Lusaka and his National Assembly counterpart Justin Muturi to form mediation committees with representation from both Houses.
First committee
The first committee, was established in April this year, to develop an agreed version of the division of revenue bill within 30 days as contemplated under Article 113 of the Constitution.
However, the bill was lost after the lawmakers failed to reach a consensus effectively plunging counties into a cash crisis affecting the salaries of employees and disrupting key services.
“The talks have failed, we have walked out on them,” Makueni Senator Mutula Kilonzo said as he led his counterparts Senator Ledama Ole Kina (Narok) and Susan Kihika (Nakuru) to walk out on a meeting that lasted over three hours.
“We cannot sit down and allow ourselves to be lectured all the time by our National Assembly colleagues on the amount to be devolved to the counties,” he added.
After the mediation hit a snag, senators in defiance, published a parallel Division of Revenue Bill 2019 allocating Sh335 billion to the devolved units.
The National Assembly threw out the bill, stating that it was not legally before the House.
However, adamant senators passed the National Assembly’s version of Division of Revenue Bill but after amending the figure to Sh335 billion from the Sh316.5 billion.
The Council of Governors (CoG) which had sought the intervention of the President Uhuru Kenyatta earlier in August 20, 2019 hit a wall as he insisted that the government did not have unlimited resources government to meet their demands.
While dismissing the clamour for higher allocations by the senators and governors, Uhuru said what the National government has been allocating to counties was actually much higher than the threshold set by the Constitution.
“The Constitution says we give a minimum of 15 per cent to counties. Within one year I took it to over 30 per cent,” the President said as he called on modesty and honesty in demands for more allocations for counties.
“Why can you not pass the bill so that people can get services? Reach an agreement so that we can release funds to counties,” he added.
The Head of State reiterated that the counties should either take or leave the Sh316.5 billion being offered by the National Assembly.
Similar sentiments were shared by MPs who challenged the Senate to prove how they would acquire the additional Sh18.5 billion they proposed.
Irked by the President’s and National Assembly’s comments, CoG moved to the Supreme Court seeking its intervention in unlocking the impasse on the bill.
CoG chairman Wycliffe Oparanya, while pointing an accusing finger at the National Treasury and Members of the National Assembly, said county governments have witnessed an onslaught on devolution, adding that it was being undermined through formulation and enactment of centralist policy and laws.
Oparanya said county governments were cash-strapped and will have no option but to shut down if the ongoing revenue row is not resolved within the next two weeks.
“In this second term, devolved governance is being attacked by denying county governments their resources.
The National Treasury continues to hold counties hostage by always deviating from the Commission of Revenue Allocations recommendation by constantly denying disbursement of funds to counties,” Oparanya said.
Advisory opinion
In his ruling, Chief Justice and President of the Supreme Court David Maraga directed the Speaker of the Senate to appoint members of the mediation committee.
“This court is really willing to give an advisory opinion on this matter as soon as possible but the constitutional process has to be completed,” said Justice Maraga, adding that the stalemate was holding the country to ransom.
It was a second time the bill was being referred to a mediation committee but even then the stakes were not promising either given the hardline positions being held by members from both Houses during their first meeting.
With a financial crisis looming, counties had to wait with bated breath to see how the last mediation talks pan out as some were already dealing with the headache of strikes by staff demanding their July and August dues.
After a long standoff, Senate threw in the towel in their dispute with the National Assembly and agreed an allocation of Sh316 billion as proposed by the National Treasury and National Assembly.
“We have made the painful decision to advise our negotiators to agree on the Sh316 billion.
We take solace in the fact that sometimes to win the war, one must be prepared to yield some battles,” said Senate Majority Leader Kipchumba Murkomen on behalf of the senators.
The said the move, though painful, was to save counties from a prolonged financial crisis and avert shutdown.
“We take solace in the fact that sometimes to win the war, one must be prepared to yield some battles,” Murkomen told a press conference September 5. He was accompanied by over 25 senators.
