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January 21, 2019

Governors' Senate Suit Portends A Referendum

If Bomet Governor Isaac Rutto and his Council of Governors spoke less, it would be easy to listen to them when they raised genuine issues.

Instead, they have being crying wolf at every turn even when it is least warranted and when other channels of consultation would suffice.

To conclude my recrimination against county governors, I would like to point out that the framers of the constitution had thought out a lot of things hence why they established bodies like the Transitional Authority and the Nyachae-led Commission for the Implementation of the Constitution.

As early as last year, these bodies have tried to guide governors on the smooth transition to devolved government and the gradual and orderly assumption of responsibilities.

Governors, have at every occasion been garrulous and uncooperative and perhaps, without understanding the need to court rather than attack different players, have found themselves alienated from the Executive, the Senate, the National Assembly and even county assemblies.

Yet for once, governors have rightly been wronged this time. The signing into law of the County Government (Amendment) Bill 2014 by President Kenyatta is not only unconstitutional but also against the spirit of separation of powers.

In the new law, the Senate has carved out a place for itself in the management of county affairs by establishing a County Development Board that will be chaired by the senator in each county.

Perhaps because Governor Rutto and company are always arguing with one entity or the other, people have not paid much attention when they said they would go to court to contest the constitutionality of the new law.

Without anticipating or prejudicing matters before our courts, let me say from basic principles that parliaments, the world over, exist to oversight the executive as relates to matters affecting the represented citizens.

At no time have we given parliament executive powers to also handle executive matters. That violates the principle of separation of powers.

The new law has tried to sugarcoat its transgressions by offering governors a little more protection from impeachment but that is lost in its move to claw back authority meant to be vested in the governor and his executive team.

The Senate leadership did not help by being confrontational on the issue. Kithure Kindiki, a professor of law who leads the majority side in the Senate, termed governors’ move to court as their right. He was also quoted in one of the dailies as shrugging off an aborted meeting with governors as inconsequential and that the Senate had more pressing issues to deal with.

This confrontational style helps no one and as I’ve written here before, the national and county governments will have to sit down and discuss a way forward with regard to how each relates and operates with respect to the other.

After all, counties did not exist when laws determining how they would be run were made. Now that they exist as legal entities, they must be allowed to bring their experience in terms of challenges and opportunities to the table of discussion before new laws affecting them are passed.

The third arm of government, the Judiciary, exists for precisely the reason governors have rushed to it; to arbitrate such matters.

It will be good for the Senate to take the matter seriously and the National Assembly as well. These are legislative bodies and have no role in assuming executive responsibilities.

Likely to be affected too, is the Constituency Development Fund, which is ran by members of the National Assembly. While it achieved some good things when it was introduced, it was but a representation of what devolution of funds could achieve.

Now that devolved governments exist, National Assembly members should have no role in managing devolved funds as this should be the responsibility of the county governments.

With this case brought by the governors, it is only a matter of time before the CDF Act and the role of MPs are also brought under scrutiny.

Even more ominous for the Jubilee government, is what this will mean for the political dynamics in the country.

Against the backdrop of referendum demands by the Opposition, the new law is likely to hand Cord a new, powerful weapon to campaign with, and along with it a powerful constituency of governors and even MCAs.

Indeed, Governor Rutto is right when he says that new laws touching on the objects, principles and structures of devolved governments, there must be a national referendum.

Further, with so many pressing issues facing the presidency, the Attorney-General's office must absolutely be seen to be offering advice on what Bills the President should be signing into law and providing the likely ramifications of each.

This bill should not have been signed and should have been sent back to the Senate to expunge any infringement of the Legislature on the powers and structures of the devolved governments.


The writer comments on topical issues.

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