It would be understandable for the Executive to try and frustrate Devolution, for it mutilates its power by decentralizing both authority and resources. In the natural need of self-preservation, the presidency together with the entire Executive would, given leeway, want to kill the new system of governance that threatens to give regions and masses the much sought self-determination. The Legislature, however, is the people’s voice. It is expected that MPs, in both the National Assembly and the Senate, would, through legislation entrench Devolution for the benefit of their constituents; that they would shield it from the reach of the Executive, which is hell-bent on manipulating and bending laws to scuttle the swift transition from centralised governance to devolved system of governance.
The National Assembly’s role is majorly representation. Chapter 8 of the Constitution, Article 95 (1), (2) and (3) say the National Assembly represents the people of the constituencies and special interests in the National Assembly; deliberates on and resolves issues of concern to the people and enacts legislation. The National Assembly can only purport to be effective if it carries out the aforementioned functions in the interest of its constituents. That would be by ensuring the success of Devolution, which largely speaks to financial liberation of the counties. The National Assembly has not. This brings to sharp focus the role of two key personalities in the National Assembly on whose goodwill the transition to devolved system of governance would have been less turbulent: Speaker Justin Muturi and the Leader of Majority Aden Duale.
The Speaker ranks first in the pecking order in the National Assembly, followed by the Leader of Majority party and then that of the minority party. While the Speaker of the National Assembly presides over the activities of the House, Majority Leader combines the powers initially held by the keyLeader of Government Business and the Party Chief Whip. He/she has the ear of the President and co-ordinates the activities of the members of the largest coalition in the House including rallying them. These two individuals have cut themselves a niche, manifest in their utterances and actions. They have opted to play to the Executive at the expense of the people and would go whatever mile to ensure the Executive’s wish is executed at whatever cost. It must be noted that Duale’s ruling Jubilee Coalition has 207 of the 349 members in the National Assembly. Jubilee Coalition can always have both its say, way and sway in the chamber. If the coalition had the people’s interests and more so the success of Devolution at heart and not the whims of their paymaster, the new system of governance would take root without bottlenecks.
The most important function of the National Assembly in relation to devolution is stated in Chapter 8, Article 95 (4) (a) of the Constitution: The National Assembly determines the allocation of national revenue between the levels of government, as provided in Part 4 of Chapter Twelve. Chapter Twelve, 202 (1) states thus “revenue raised nationally shall be shared equitably among the national and county governments”. Article 203 (d) of the same Chapter says that the need to ensure that county governments are able to perform the functions allocated to them shall be taken into account in determining equitable sharing.
Article 217 (1) states: “Once every five years, the Senate shall, by resolution, determine the basis of allocating among the counties the share of national revenue that is annually allocated to the county level of government.” The Article, in (2), goes further and stipulates that the Senate, in determining the basis of revenue sharing, shall request and consider recommendations from the Commission of Revenue Allocation, consult county governments and the public and professional bodies. The Senate, According to Amos Wako,Senator Busia County and immediate former Attorney General, debated the Bill and approved it with amendments, which had the effect of giving more revenues to the counties. The Upper Chamber of Parliament had suggested a 22.9% to Sh258 billion from Sh210 billion earmarked by the National Assembly.
In accordance with the Constitution, Wako says, the Senate returned the Bill to the National Assembly for approval. If it rejects then the Bill is referred to a Mediation Committee under Article 113 of the Constitution. The Speaker of the National Assembly, Justin Muturi, however, ruled that he had sent the Bill to Senate by mistake and therefore the Bill as amended by Senate would not even be considered. He then proceeded to give the original Bill to the President for assent, which the President duly did. The Supreme Court, where the Senate sought and obtained a favorable advisory opinion, wondered how the National Assembly could ignore the Senate’s suggestions after forwarding the Bill to the latter for its input.
“The National Assembly after debating and passing the Bill, and forwarding it to the Senate which then made amendments, changed its mind, refused any further cooperation with Senate, and secured the direct assent of the President, making the said Bill as passed by only one Chamber, an Act of Parliament,” said the Chief Justice Willy Mutunga in a ruling that sided with the Upper Chamber. “The question was: Whether the National Assembly was right in monopolising law-making powers on the very financial question which, alone, would determine the success or failure of the operations of counties, and of the whole scheme of devolved government which lies at the core of the current constitutional order,” said the president of the Supreme Court.
In conclusion, the court, by majority, ruled that “the Division of Revenue Bill, 2013 was an instrument essential to the due operations of county governments, as contemplated under the Constitution, and so was a matter requiring the Senate’s legislative contribution. Consequently, the Speaker of the National Assembly was under duty to comply with the terms of Articles 110(3), 112 and 113 of the Constitution, and should have co-operated with the speaker of the Senate, as necessary, to engage the mediation forum for resolution of the disagreement.” The Speaker of the National Assembly could hear none of it. In his mind, the Supreme Court had no right to interfere with matters in the National Assembly. “Whatever the court said is their own position as we are going on with the business of making laws and we know what we are supposed to do as we are guided by the Constitution,” Mr Muturi said. That is how we are where we are today; more devolved functions with no matching resources, health sector crisis and the resultant clamour by the governors, emboldened by the Opposition for constitutional changes that would clearly entrench devolution. Had the National Assembly listened to the Senate, had it heeded the advice of the Supreme Court, some compromise through legislation would have been reached by now and the nation would not be charting the murky and expensive referendum path.
Professor Okoth Okombo of University of Nairobi, Department of Linguistics and Literature is of the view that governors have a right to demand for more funds given that more functions have been devolved from the National Governments. “Every function had funds when it was under the national government. A function moves with its vote. If you had agriculture under the national government, agriculture must have had a budget. If you take agriculture to the county government, agriculture should move with its money, only that it will be split because we have 47 counties.” County governments are not without blame; they keep spending far beyond their means on emoluments, foreign trips, and cars. Truth is, however, much of the money dispatched to them in the last financial year was purely for setting up and salaries with much of it arriving hardly two weeks to the end of spending period. There was hardly any provision for development. Members of the National Assembly Assembly with which to perpetuate their stay in office.
The Senate, which hitherto had remained faithful to the course of Devolution, has also derailed from track. Senators, in the name of oversight, now want to force themselves onto County Development Boards and not just as members, but heads, subordinating governors to deputies in the boards. County Government Amendment Bill 2014 originating from the Senate and masterminded by Senators Kipchumba Murkomen and Kindiki Kithure, Elgeyo- Marakwet and Tharaka Nithi respectively,had in fact initially designated governors for secretaries of the board. This was, however, rejected by the National Assembly, which reasoned that governors would be ceding to senators their constitutional authority as chief executives of the counties. “Senators must chair the County Development Boards because they are more neutral as they are the only elected leaders who do not manage any fund. Besides, Article 96 of the Constitution makes Senators the umbilical cord linking the National and County Governments,” Murkomen, who is also the Senate’s chairman of the Committee on Devolved Government wrote in an article in one of the daily newspapers in September. Addressing the Annual Lawyers Conference in Kwale last August, Amos Wako said Article 96(3) gives the Senate oversight power over national revenues allocated to the County Government. The Senate, he said, had taken that role seriously. “We do not want the sins of corruption and non-accountability at the national level to be devolved to the counties. The time to be strict is now so that we develop a culture of finance discipline from the beginning,” he said. What is in dispute however is not the right of oversight by Senate over county governments; it is the manner in which the Senate wants to exercise that function. The model for the Senate’s oversight role over county governments, according to Prof.Okombo, should come from what exists,which is the National Assembly’s oversight role over the National Government. The National Assembly, he says, oversights National Government through committees and this is the same model by which the Senate should exercise oversight over county governments.
“The desire by Senate to control county development boards is misguided completely. Oversight is not about taking over. Indeed it requires some kind of separate existence so that your view is an outsider’s view. You cannot exercise oversight when you chair, because by chairing you become a participant. When you are there it is actually your work now that is being over sighted by yourself. It is an anomaly. The moment you become part of it, we now need someone else to oversight it,” the don told The Nairobi Law Monthly. Tragedy with the Senate, Prof. Okombo argues, is that all these entities — MPs and governors — represent the same constituents. They campaigned for election on the same platform of development. Now, the governor has his billions of shillings in county budgetary allocations by the national government, the MP has clutched on the CDF purse, yet the senator has nothing. But to Kenyans, development is building roads, schools, hospitals, and bursaries, to mention a few. All this boils to money, which senators lack. Money is power. Without power, you cannot perpetuate yourself. It is survival for the fittest and the senators are losing out. But the Senate, Prof Okombo says, is playing a key development role in terms of legislation. It is in this role that the Senate should ensure Devolution is properly entrenched. There could never be development greater than legislation that would ensure counties are appropriated enough funds to sufficiently carry out devolved functions. This, the Senate could top up by proper oversight, through committees to ensure accountability in the counties. The desire by the Senate is to bury their heads in the sand on the fact that county governments, modeled on the national government, are fully fledged, with the executive and assemblies is the origin of the push and shove between Senators and Governors.
County governments have internal oversight mechanisms. The only oversight lacking is a proper external one that the Senate, through committees just like the National Assembly checks the National Government, should provide. Besides, other checks and balances would be provided through the other constitutional offices like that of the Auditor General and the Controller of Budget. Where financial impropriety is detected to the extent that investigations are required, the police and the Ethics and Anti- Corruption Commission would now come in. But the Senate’s desire to chair these boards, Prof. Okombo insists, is driven by survival.
“Murkomen Kipchumba argued that the law to have senators chair County Development Boards must be good because there are prominent lawyers in Senate. I like his argument not because of his conclusion but because it suggests to me therefore that if we have such prominent lawyers (in the Senate) who could not make such a silly mistake then they were blinded by self-interest,” he says.