Governors and senators’ wars jolt devolution unless president Uhuru intervenes

NAIROBI, KENYA: The war between senators and governors is threatening to stall operations in the counties.

Unless President Uhuru Kenyatta intervenes to resolve the dispute, the battle between the two sides is becoming full-blown.

And governors have vowed to use massive resources to mount a legal fight that could end up in the Supreme Court.

“We hope the case in the High Court will be in our favour but we are prepared to use every available legal avenue to protect devolution, which Kenyans fought for,” said Bungoma Governor Kenneth Lusaka.

Senators are demanding accountability from the county bosses, asking them not to interfere with their (governors’) constitutional mandate.

The relationship between them has deteriorated following recent enactment of the new law creating County Development Boards to be chaired by senators.

The county bosses are also up in arms over reduction of money allocated to level five hospitals from Sh3.7 billion to Sh1.87 billion this financial year.

The governors have protested against the 23 laws legislated by Parliament that they say undermine devolution.

They are also contesting frequent summons by the Senate on audit queries. The county chiefs recently snubbed a meeting convened by the legislators in Mombasa to discuss challenges facing devolution.

The supremacy battles have resulted in the governors’ clamour for a referendum, to among other things, amend Article 203 of the Constitution. The amendment is aimed at deleting the 15 per cent revenue allocation clause to pave the way for allocation of 45 per cent of revenue from the exchequer to the counties.

Saturday, Council of Governors chairman Isaac Ruto said: “Kenyans want services. We cannot ensure efficiency in counties without the political will of all elected leaders and adequate resources.”

Ruto also faulted the national government for holding onto Sh102 million meant for devolved functions from ministries.

The money include Sh17,833 million (Health), Sh24,425 million (Water), Sh8,034 milion (Housing), Sh19,093 (Lands), Sh19,078 million (Transport and Infrastructure) and Sh4,786 million for Livestock.

Not disbursed

There is also the additional 10 per cent to cover for miscellaneous programmes amounting to Sh9,325 million that was not disbursed.

Ruto argues that in total, counties should have received Sh350 billion instead of Sh226 billion under the current arrangement, which is also disputed.

Nyeri Governor Nderitu Gachagua demanded that the 23 pieces of legislation that threaten the devolved units be done away with.

“It is saddening to note that though we make our input in drafting legislation by various ministries, the views are never included in the final Bill tabled in the House,” he said.

The point of departure between governors and senators has mainly been on accountability.

Speaker Ekwe Ethuro, Majority Leader Kithure Kindiki and Minority Leader Moses Wetang’ula have, however, urged governors to honour Senate summons.

“There are no two ways about it. We must know how these funds are utilised. We cannot push for funds we can’t account for,” said Prof Kindiki.

He also called for respect for the committee meetings from governors, saying they enjoy the powers of the High Court.

On Thursday, Senate approved a motion by Senator Boni Khalwale to instruct the Treasury not to release funds to Kisumu, Kiambu, Muranga and Bomet counties, and Controller of Budgets not to authorise withdrawals.

Governors have cautioned the move will stall county operations.

Kindiki stressed that affected counties will only receive funds after responding to audit queries satisfactorily.

Dr Khalwale, who chairs the Public Accounts and Investment Committee, moved the motion while claiming Governors William Kabogo (Kiambu), Mwangi Wa Iria (Muranga), Jack Ranguma (Kisumu) and Ruto (Bomet) had snubbed committee meetings in which they were expected to shade light on their expenditure. Kisumu Senator Anyang’ Nyong’o was angered by Ranguma’s failure to show up for the meeting and warned of dire consequences.

“This is where senators get it all wrong because they are misusing their supposed constitutional powers to exert undue pressure on governors,” said Ruto.

Ruto said it was unfortunate that senators would rather retain governors for grilling for hours when other pressing matters were pending in the counties.

On Thursday, senators held a speaker’s Kamukunji (informal) sitting to deliberate on the issues and how best to deal with them.

Botched meetings

The feud between the two sides has resulted in both snubbing meetings convened by either party since last year.

The Standard on Sunday has, however, established that scheduled meetings between the two sides have been put off thrice in the recent past.

“Let us try to implement the Constitution first and if come 2017 Kenyans will decide that there is a need to amend it, an extra clause would be inserted that would allow for the provision of an extra ballot box for Kenyans to vote for the constitutional amendments that they would wish made,” he said.

Chairman of the Senate Finance Committee and Mandera County Senator Billow Kerrow said governors were consulted before County Development Boards were created.

He said the Senate Committee on Legal Affairs consulted the Council of Governors and the Constitutional Implementation Commission (CIC), among other institutions, at the second reading of the Bill way back.

Chairman of the Senate’s Legal Affairs and Human Rights Committee and Busia County Senator Amos Wako said President Kenyatta was rightly advised in signing the Bill to law.

“My committee incorporated views from the COG, CIC and the Law Society of Kenya (LSK) and re-drafted the Bill by Nandi County Senator Stephen Sang. The Senate passed it, National Assembly did not, but we formed a mediation committee which I chaired, and which agreed on contents of the Bill,” said Wako.

Mombasa Senator Hassan Omar said all senators supported the Bill after it was refined and their concerns taken care of, and that the National Assembly also found concurrence.

“Some of us had concerns which were taken care of and these boards are just platforms for consultation. The governors discourse is therefore unnecessary,” added Omar.

But Governors’ Council Vice-Chairman and Kwale County Governor Salim Mgalla Mvuyra argued that they never approved the new law.

“We have to look at separation of powers. If the Senate oversights, how does it become part of the Executive by chairing development boards?  Asked Mvurya.

Mvurya told The Standard on Sunday that senators must wake up to constitutional realities and agree to look at the current standoff with a sober mind.

“They have taken a dangerous trend but if the court says the law is constitutional, we have to live with it. I, howeve,r do not see the law being sustained because it is totally unconstitutional,” added Mvurya.

Meanwhile Kericho Senator Charles Keter has challenged County Assemblies to exercise their oversight role without fear or favour.

-Additional reporting by Nikko Tanui