Judiciary top defender of devolution, Koome assures Senators

Thursday, September 22nd, 2022 09:23 | By
Chief Justice Martha Koome.
Chief Justice Martha Koome. PHOTO/File

Chief Justice Martha Koome yesterday said courts serve to defend fundamental elements of the constitutional order from being altered or destroyed.

The CJ opined that with respect to the constitutional project of devolution and bicameralism in the legislative system, courts serve a protective role by guarding the institutions established to engender the project of devolution of governance.

“Courts have been the foremost defenders of devolution. In every instance when devolution has been threatened, courts and specifically the Supreme Court has stepped in to defend the spirit of devolution,” the CJ noted.

In an audio clip speech played at the ongoing Senate induction retreat in Naivasha, the Chief Justice also called on senators to work together to serve the people and realise promises of the Constitution, including enabling the devolved system of governance to work optimally.

Koome (pictured) further averred that the Judiciary has given effect to the constitutional governance architecture anchored on devolution.

For instance, the CJ explained that in Council of Governors vs Attorney General, the Supreme Court rendered an Advisory Opinion on how the recurrent failure between the Senate and National Assembly to agree on a Division of Revenue Bill would be resolved.

She said the court directed that funds equivalent to 50 per cent of the previous year’s allocation should be disbursed to counties whenever the legislative chambers have not agreed on division of revenue between the two levels of government despite the commencement of a new financial year.

“This recurrent stalemate has often led to delayed disbursement of funds to county governments. The Supreme Court opined in an Advisory Opinion that the Senate has a clear role to play, in the processing of the Division of Revenue Bill.”

Legislative chambers

Before the Supreme Court rendered its opinion, the National Assembly had asserted that the Senate should not be involved in the processing of the Division of Revenue Bill, which is the legislative instrument for budgetary allocation between the National and county governments.

In the Constituency Development Fund (CDF) case, the Supreme Court held that it is unconstitutional to allocate funds to the CDF before the division of revenue between the national and county governments. According to the CJ, it was the position of the Court that it offends the division of functions between national and county governments to allow the CDF, an instrumentality of the national government, to undertake functions devolved to the counties.

“Supreme Court is developing rich indigenous jurisprudence that has protected the spirit of devolution and has also enabled institutions established under our devolved system of government to function. The Courts have done this by adopting a purposive approach to constitutional interpretation.”

However, her failure to attend the Senate retreat did not go down well with some of the Senators.

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