Governors have set the stage for a legal showdown following President Uhuru Kenyatta’s assent to a controversial law that puts County billions in the hands of senators.
They also resolved to conduct their own national referendum dubbed ‘Peace Mashinani’ to push for an increase in county allocation from the current 15 per cent stipulated in law, to 45 per cent of the preceding budget.
The county bosses dismissed that the national government assertion that it has allocated 43 per cent of the national revenue to counties as being false, saying it was based on old figures. They held a consultation meeting at a Nairobi hotel, after which they announced the resolution.
“There is now a clear indication that devolution is under threat,” the council said, citing the reduction of funds to level 5 hospitals, interference by the national government as well as the withholding of Sh180 billion owed to counties.
The Council of Governors (CoG) went to court yesterday, claiming the law signed by the president is illegal. And in a press statement yesterday, the council protested what it said was an attempt to kill devolution.
The new law creates the county development boards to be chaired by senators while governors will be vice chairmen. Other members of the board are MPs and Members of the County Assemblies (MCAs)..
The CoG, through lawyer Peter Wanyama, lodged a case under certificate of urgency at the High Court, seeking to establish if the law is within important sections of the Constitution.
They have sued Parliament and the 47 senators for legislating an unconstitutional Act and are urging the court to declare it null and void. Wanyama said senators are supposed to perform their oversight and legislative roles and not executive functions.
But even as the storm raged on the new legislation, President Uhuru stood his ground about the allocation that all the counties got in the budget for this financial year.
The Head of State, through his spokesperson Manoah Esipisu, told journalists in Nairobi that he used the latest audited accounts as approved by the National Assembly.
“It is not the President’s work to produce audited accounts on which budgets are based. That is the work of Parliament,” said Esipisu.
He said the governors were “lying” by saying the president’s figures were wrong. “Obviously the governors need to do their mathematics, which will show that the President’s numbers work. The last audited accounts are a year back, the lie being peddled around that these numbers relate to 2009/2010 is just that, a basic lie,” said Esipisu.
He added: “Parliament did the maths, it is 43 per cent. The governors can find whatever numbers they want to find.”
At the courts, the governors also want the court’s interpretation on whether Parliament is bound by the provisions of Articles 6(2) of the Constitution to conduct its legislative powers and other business in a manner that respects the functional, institutional and legislative distinctness of a County Government.
Wanyama who filed the case before Justice Isaac Lenaola, said: “It is extremely unconstitutional for County Government (Amendment) Act 2014 to purport to vest executive powers to County Development Boards in a manner that undermines the powers of the County Executive Committee.”
He continued: “The existence of these boards can only be justified if they operate in subordinate to the County Executive Committee or subject to its control. Not vice-versa.”
However, Justice Lenaola certified the matter as urgent and directed Wanyama to serve the parties including Attonery General Githu Muigai who is an interested party.
After the meeting yesterday, governors outlined ten key issues, which include increased allocation, strengthening the role of senate, creating a nexus between senate and county governments and assemblies, counties to have own law gazettement framework, management of security at the local level, clarity on management of land, natural resources and Forestry and Recall/Impeachment of all elected leaders.
They also want to form a successor to Commission for the Implementation of the Constitution (CIC )as a gatekeeper of laws at the county level.