• The three months standoff witnessed in Parliament over a Bill on county cash in 2019 brought into focus the ability of the Senate to effectively protect the interest of the counties.
• The Senators ceded ground on the dispute with their colleagues in the National Assembly over the Division of Revenue Bill, 2019.
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The three months standoff witnessed in Parliament in 2019 over a Bill on county cash brought into focus the ability of the Senate to effectively protect the interest of the counties.
The senators ceded ground on the dispute with their colleagues in the National Assembly over the Division of Revenue Bill, 2019.
The Bill is a crucial piece of legislation that splits revenue collected nationally, between the national government and the 47 devolved units.
The standoff plunged the devolved units into a serious cash crisis. Key operations were affected with some suffering total paralysis as their employees downed tools protesting delayed salaries.
The lawmakers had put up a spirited fight to have the counties allocated Sh335 billion – Sh21 billion more than the previous year’s allocation of Sh314 billion – in the 2019-20 financial year.
Their counterparts in the National Assembly had insisted that the counties should be allocated Sh316 billion, citing cash-flow challenges in the government.
The two Houses clashed bitterly, with meetings of the mediation committee formed to strike a middle ground, being marred by shouting matches and walkouts.
The Star learnt that the Senators were under intense pressure from the President, who had already declared the government did not have money to add to the devolved units, and the council of governors that had threatened to shut down the counties for lack of money.
Senate Majority leader and Kipchumba Murkomen said at the time that they made the ‘difficult and painful decision' to help avert a looming shutdown of the services in the counties.
“This [stalemate] would have a disastrous effect on critical sectors such as Agriculture and Health,” Murkomen said.
University lecturer Herman Manyora observes that the Constitution and the politics of the day have clipped the Senate’s powers to effectively protect the counties.
“It does demonstrate that the Senate doesn’t have the kind of teeth that is supposed to protect the counties. And the reason is in the Constitution,” he says.
Political commentator Martin Andati argues that declaration by the President that the counties did not have money coupled with the limited mandate in law worked against the Senate.
“We have a problem [with the Constitution]. We were making the Constitution, we made a mistake. The Senate should have been the upper house to protect devolution. It should have been made the upper house with veto powers,” he says.
Senate Speaker Kenneth Lusaka, however, defended the Senate’s decision as Solomonic and patriotic, saying the move demonstrated the House’s determination to protect the interest of the devolved units.
The speaker reiterated that the Senate has enough instruments in the law to protect the counties, explaining that the move was only meant to end suffering in the counties.
“We were just being patriotic and reasonable enough. We realised that we were not making progress. We were just mark timing and wasting time,” he says.
He adds, “It was a patriotic move that maybe next time we find better ways so that we don’t get to that level. It was a Solomonic decision where we were either to cut the child into two or give the child to the rightful owner.”
Narok Senator Ledama Olekina, who sat in the mediation committee, blamed the dishonesty in the executive and unprincipled Senators for the ‘embarrassment’ the senate endured.
Article 96 of the Constitution gives the Senate the four roles which include protecting the interest of the counties and their governments, making laws concerning counties, determining the allocation of national revenue among counties and oversight of state officers.
But Andati and Manyora argue that the limited scope of the roles of the Senate as stipulate in the Constitution has crippled the Senate, they argue that the Senate is a House that is struggling for space.
“The Senate is trying to squeeze where it does have space. The constitution did not give it the space to defend the counties,” Manyora says.
The Senate and the National Assembly have been wrangling over their mandates with bad blood culminating in the former suing the latter for undermining and belittling it.
In July, the Senators challenged the enacted of at least 24 pieces of legislation in court which it argued were passed by the National Assembly and signed into law by the President with their input.
According to the Senate, the disputed bills were passed without their involvement, and yet a number of them relate to counties and devolution.
"If institutions do not work in accordance with the law, anarchy can easily set in. This kind of violation of the Constitution is gross and susceptible to ridicule," Minority leader James Orengo, a senior counsel, said.