Council of Governors wants MPs to pass Bill on funds allocation

Chairman Council of Governors Legal and Constitutional Affairs, Kiraitu Murungi, his deputy Francis Kimemia and Kilifi Governor Amason Kingi address a press conference at their offices in Nairobi on August 23, 2021 [Wilberforce Okwiri, Standard]

The Council of Governors (CoG) yesterday picked at least nine clauses that they want the National Assembly and the Senate to consider before the next General Election as they do not require a referendum.

This comes after the landmark judgement by the Court of Appeal that declared the BBI illegal.

The Constitution of Kenya (Amendment) Bill, 2020 sought to amend 74 clauses out of which 51 do not require a referendum and can be amended through a parliamentary initiative.

Some of the clauses the governors are pushing for include the proposal to increase funds allocated to the counties from 15 per cent to 35 per cent. This they said would ensure adequate resources for the devolved units.

The governors are also pushing for the creation of Ward Development Fund that is supposed to comprise of at least five per cent of all the county government's revenue.

They also want amendments to the Higher Education Loans Board Act to create a four-year loan repayment moratorium for university students as well as amendment to the Micro and Small Enterprises Act, 2012 which proposes to give startups a 7-year tax break.

They are further pushing for Parliament to consider Article 202 on the Equitable sharing of national revenue which will ensure counties are adequately resourced.

According to the proposals, the amendment will ensure that revenue sharing will be based on the most recent audited accounts of revenue submitted by the Auditor General in the event the National Assembly has not approved the audited accounts.

“The COG will work with other stakeholders including the Legal Affairs committees of both Houses to ensure that these amendments are passed before the next General Election. This is the moment to test the political will and genuineness to the political class especially those that were supporting the BBI to support the CoG sponsored Bill,” said Meru Governor Kiraitu Murungi. Kiraitu was flanked by Nyandarua governor Francis Kimemia and his Kilifi counterpart Amason Kingi.

Kiraitu who is the CoG Legal and Constitutional Affairs Committee chairman said that governors still support the spirit of BBI and the dream of ending divisive elections that result in electoral violence and ethnic antagonism.

He said that increased resources will ensure inclusivity as there would be development across all parts of the country.

“It was envisaged that through these amendments, county governments would have an increase in their equitable share from the current 16.9 per cent to not less than 35 per cent of the total revenue collected. This will enable the county governments to empower informal small scale traders, women, youth, persons with disabilities and the economically disadvantaged,” said the council in the statement.

Makueni Senator Mutula Kilonzo Jnr, who is also a member of Senate Committee on Justice, Legal Affairs and Human Rights Committee said it was possible to collate all the issues that do not require a referendum and have them considered before the next polls.

He explained that such a Bill will require 90 days from first to second reading.

“Ideally, between first reading and second reading is 90 days. Since the clauses do not have any effects on the elections they can be done before the next polls,” said Mutula Jnr.

He however, noted that any amendments touching on the structure of the three arms of government will have to require a referendum based on the Court of Appeal judgement.

The senator explained that the implication of the judgement is that Bills before the House seeking to amend the Constitution so as to have MPs appointed to the Cabinet cannot proceed.

“A change of structure would require a referendum and to that extent, any Bill seeking to alter the composition of Parliament or any other arm of government cannot be effected without a referendum,” he said.

National Assembly Majority Leader Amos Kimunya, however, expressed fears over the possibility of the two Houses passing amendments to the Constitution, citing pronouncements by the Court of Appeal.

Kimunya said the Judiciary pronouncement make it unnecessary for MPs to bring any legislations seeking to alter the supreme law.

He appealed to MPs to hold their horses until parliamentary legal team provides technical advice on amendments to the Constitution.

“We welcome any proposals from any Member of Parliament in terms of amendment to any law including the Constitution, but I would urge any member to take cognizant of the fact that the courts have laid some stringent measures and restrictions,” said Kimunya yesterday.

“We will be taking advise from our legal team on how to guide Members of Parliament as they hope to make constitutional amendments. For now, I would urge members to hold their horses until we get that clarity to know what is doable and what is not doable,” he explained.

Clause 11 of the Bill that proposes creation of the office of the Leader of Official Opposition as well as to have MPs sit in the Cabinet are some of the provisions that would require a referendum.

Others are Clause 12 that proposed two senators from each of the 47 counties, clause 15 that seeks to alter order of precedence in the National Assembly by introducing the Prime Minister and Leader of Official Opposition, Clause 28 that proposes to amend Article 155 to remove the requirement for the vetting of the Principal Secretaries by the National Assembly.

Other proposals include a clause proposing creation of the office of the Prime Minister and two deputies, Clause 30 that seeks to amend Article 157 to enhance the qualification for appointment as the Director of Public Prosecution to be the same as that of a judge of the Court of Appeal as well as Clause 31 on the resignation and or removal of the DPP.

Clause 35 of the Bill proposes to amend Article 167 to provide for the tenure of office of the Deputy Chief Justice and harmonise it with the tenure of office of the Chief Justice as well as Clause 36 of the Bill proposes the establishment of the office of the Judiciary Ombudsman.