Ruling foils bid by legislators to ‘micro-manage’ county projects

A court has dealt a final blow to senators and MPs over their push to control billions of shillings allocated to development projects in counties.

The Supreme Court ruled that MPs have no authority to preside over or take charge of the County Development Boards and declared the County Government (Amendment) Act 2014 unconstitutional, null and void.

Chief Justice Martha Koome and justices Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u, and William Ouko declared that it was illegal for senators to seek control of county affairs through the backdoor when the Constitution only mandates them to oversight counties at the national level.

“It is untenable for senators, who oversight county resources from the national government, to convene and chair county committees. That is why the Constitution proclaims that there must be respect for functional and institutional integrity for each level,” they ruled.

Their decision was a big win for governors who have been battling senators and MPs who were seeking to micro-manage development projects in the counties by enacting the County Government (Amendment) Act of 2014.

The Act created the County Development Boards in each of the 47 counties which were to be chaired by senators, while governors were to serve as vice-chairpersons.

According to the Act, other members of the County Development Board would include all MPs in a county, the county woman rep, deputy governor, leader of the majority party in the county assembly, and the minority leader.

Others were chairman of the county assembly’s finance committee, chairman of the county public service board, the county secretary, and county commissioners, who were to represent the national government.

The board was to consider and approve any county’s development plans before they are tabled in the county assembly for consideration.

The Council of Governors challenged the law when it was enacted in 2014 arguing it was meant to weaken their powers and have senators at the helm of approving development funds allocated to the counties.

In July 2015, then High Court Judges Isaac Lenaola, Mumbi Ngugi and George Odunga declared the Act as unconstitutional, null and void on account that senators, MPs, and the national government have no duty sitting in the county development boards to determine development projects.

The judges ruled that the Act created an illegal entity whose composition would interfere with the mandate and functions of county governments which is a big threat to devolution.

They added that the Act was an express violation of the doctrine of separation of powers as it gives senators, MPs, and the national government to extend their mandate where they have no jurisdiction.

According to the judges, senators’ roles were oversight and protection of counties at the national level while the MPs roles were to oversight and supervise the national government.

Aggrieved by the High Court decision, the senators appealed but in June 2019, five Appellate judges Philip Waki, Patrick Kiage, Gatembu Kairu, Fatuma Sichale, and Otieno Odek dismissed the appeal.

The senators again moved the Supreme Court claiming the High Court and the Court of Appeal erred by denying them the chance to control county development projects.

But the apex court judges not only affirmed the decisions but also declared that Senators cannot be involved in the co-coordination of programs that are purely county programs, project approvals or implementation of the projects which are county executive functions.

“The Legislature may have had the noblest of intentions in enacting the County Governments (Amendment) Act but that intention and the effect it produced has not met the constitutional test of validity,” ruled the judges.

They added that while the two levels of government must work in consultation and cooperation with each other, the Senators cannot oversight the County governments at the county level since that role is reserved for the County Assembly.