•Speaker says Supreme Court has no jurisdiction to issue an advisory on the reference filed last week
•The matters raised are subject of ongoing proceedings before the High Court
National Assembly Speaker Justin Muturi has challenged the Supreme Court's admission of a reference by governors seeking to unlock the impasse on the Division of Revenue Bill 2019.
Muturi told Chief Justice David Maraga that the Supreme Court has no jurisdiction to issue an advisory opinion on the reference filed on Monday last week.
He said it should be dismissed "for the reason that the matters raised are subject of ongoing proceedings before the High Court".
Muturi, through lawyer S. Mwendwa, also said that the Constitution requires that the county and the national governments make reasonable efforts to settle disputes before resorting to judicial proceedings.
But Maraga refused to entertain the Speaker's objection at this stage, adding that the same will be canvassed when the hearing dates are set.
The governors filed the reference seeking an advisory from the Apex Court on failure by Parliament to pass the Bill which has starved counties of cash. The bill collapsed following disagreements between the National Assembly and the Senate.
Parliament wanted counties allocated Sh310 billion while the Senate insisted on Sh335 billion. The reference challenges the constitutionality and legality of decisions made by the National Assembly and the Treasury.
But Muturi says the issues raised in the reference are subject of pending proceedings in the High Court.
He has listed three cases before different judges at the constitutional courts. One is filed by Wanjiru Gikonyo against CS Treasury, Controller of Budget, among others. Wanjiru has accused Parliament of violating some articles of the Constitution without the inclusion of the Division of Revenue Bill.
Her petition was certified as urgent by Justice Weldon Korir on July 15 and is slated for directions on July 19 (yesterday) before the same judge.
Another case was filed by COG in 2016 challenging the manner in which Parliament has been conducting the budget process pertaining to the mode of division of revenue between the national and county governments with emphasis on conditional grants.
The petitioner seeks a declaration that funds listed as "national interest" in the Division of Revenue Act 2016 or any other Division of Revenue Act enacted to implement the provisions of articles 202 and 203 of the Constitution cannot be appropriated on devolved functions without the same being channelled to the counties as conditional or unconditional grants.
But Parliament objected and the court suspended the hearing of the petition and referred the matter to mediation as required under article 189 (3) of the Constitution. The petition is pending before Justice James Makau and is slated for mention on September 16.
Muturi says the governors have failed to disclose to the apex court the pending cases at the High Court and the reference should be dismissed. He also argues that as per article 186 of the constitution the governors have not demonstrated that they have exhausted the measures as set out under the said provisions.
The governors insist that most of the funded functions are devolved while others like regional development functions cannot be funded because they conflict with the system of the devolved programme.
There is, therefore, a need for the Supreme Court to advise on whether the national government can continue to retain and fund the devolved functions at both recurrent and capital level.
The CJ certified the matter as urgent and directed the parties to file and serve their papers by close of business Monday next week. The matter will be mentioned for direction on Tuesday.