Governors hit back at Senate over new law

Governors hit back at Senate over new law

Kenya: Upset over a new law that gives the Senate a say over development funds for the counties, governors cancelled a high-level retreat they were to have with senators in Mombasa. President Uhuru Kenyatta assented to the County Government (Amendment) Bill 2014, anchoring in lawthe County Development Boards to be chaired by senators.

The Governors termed the creation of the boards unconstitutional and meant to undermine their executive authority. The angered county bosses yesterday moved to the High Court to seek an interpretation on the new law.

The Mombasa retreat was, among other things, meant to iron out the differences governors have been having with the senators and ensure they work together. Council of Governors Chairman Isaac Ruto (Bomet) and Kericho Governor Paul Chepkwony said they had communicated to the Senate Speaker Ekwe Ethuro over the cancellation of the retreat. “We feel that this would be an exercise in futility. There is a general feeling that the senators are not honest even as we talk about ensuring frictionless operations at the counties. That is why we decided against the Mombasa meeting,” said Chepkwony.

But in a quick rejoinder, Senate Majority Leader Kithure Kindiki said the senators had nothing to lose in governors cancelling the retreat, saying it was the county bosses who had organised it.

“We were going there on the invitation of the governors. If they have called it off, it’s up to them. The Senate has more pressing issues to handle,” said Kindiki.

The county bosses expressed their disenchantment with the signing into law of the Bill, terming it a setback and a move to undermine devolution.

“The Act is unconstitutional. The Constitution is clear that the governor is the Chief Executive of the county government,” the governors said in a statement yesterday. They argued that the law was also in contravention of the County Governments Act.

“Section 30 (3) of the County Governments Act is unequivocal in stating that the governor provides leadership in the county’s governance and development. It is therefore gravely prejudicial to create a body dealing with development and such body fails to recognise the development role of the governor at the county level,” they said.

The angry county bosses argued that such a law, which amends the principle and structure of the devolved system, cannot be introduced without a referendum.

“The Act violates Article 255 (i) of the Constitution which stipulates that, where there is a proposed amendment relating to the objects, principles and structure of devolved government, a referendum is required. Since the amendments provided in the County Governments Amendment Act 2014 relate to the structure of the county governments, then the Act is essentially a nullity,” they said in a statement released by Ruto.

Ruto faulted the President’s decision to sign the Bill into law, stating that his actions “fit perfectly with the Jubilee government’s strategy to destroy counties”.

“We have moved to court because we do not agree with the legislature and the national executive on this matter. This was an illegal Bill,” said the Bomet Governor. He wondered how the senators would juggle their legislative and oversight and executive roles they were granting themselves through the law.

Governors Josphat Nanok (Turkana), David ole Nkedianye (Kajiado), James Ongwae (Kisii), Paul Chepkwony (Kericho) and Ahmed Adullahi Mohamed (Wajir) concurred with Ruto that the establishment of the boards is unlawful.

Kindiki had welcomed the decision by governors to move to court, saying it was their constitutional right.

“If anybody is not happy with a particular decision, they can seek legal interpretation. Counties are a new system of government that has different institutional roles and therefore it’s not an offense for any aggrieved party to move to court,” explained the Tharaka Nithi Senator.

Nanok warned that implementing this law would be difficult as it would create confusion. His Wajir counterpart said it was unfortunate that this latest development would only create acrimony between institutions and it is perceived as a plot to water down the powers of governors.

GREY AREAS

“This legislation is meant to undermine devolution. We believe there is a scheme to destroy devolution propagated in a way that shifts focus from the real issues to non-issues,” said  Mohamed.

He explained that globally, teething problems affecting decentralised systems are not resolved through amendments to law, but administratively using subsidiary legislations.

“We agree that there are grey areas as this is a new system, but Parliament should not be used to settle personal scores. Institutions should not be used to rally arbitrary legislation,” he cautioned.

Mohamed, who is also the chairman of the CoG Finance Committee, urged the Senate to draft laws only as a last resort to avoid the fighting that slows down development in counties.

Nkedianye said the law would cause friction in counties instead of focusing on development matters. He said seeking the court’s interpretation on the matter is the best solution.

Ongwae said Parliament and the presidency should not enact punitive laws.

“This is unconstitutional; Parliament’s work is to make laws and not to take part in their implementation. If lawmakers will be part of the board what will be the work of the Members of the County Assemblies (MCAs) as not all will be members?” he questioned.

“The MCAs are charged with the responsibility of oversight and legislation. Establishment of the boards spells doom in counties and we have a feeling that there are forces that are out to ensure devolution does not succeed.”

The Kisii governor expressed concern that there is a dangerous trend taking shape, where Parliament comes up with Bills aimed at clawing back devolved functions to the national government.

“Various Bills are being drafted. Some are already before the Houses of Parliament seeking to revert already devolved functions, “he said, singling out the Health, Roads and Water bills, among others.

Chepkwony shared the same concerns with his colleagues and called on the Parliament and The Presidency to salvage the situation before things get out of hand.

“We need to reach a consensus on these matters. Kenyans want development and service delivery, and not sideshows on supremacy wars,” he stressed.

The new law, crafted by Nandi Senator Stephen Sang amends the County Government’s Act, 2012 with the County Secretaries now sitting on the County Development Boards as secretaries instead of governors as earlier proposed.