• Persistent wrangles paralysing national and county governments can lead to Parliament's dissolution. Any citizen can petition the High Court to disband legislature.
• Legislators pondering legislation to resolve their differences, including giving counties 50% of last allocation until dispute resolved..
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In a shock opinion, the Supreme Court has said persistent revenue wrangles in Parliament that paralyse county governments could lead to dissolution of the House.
If the dispute over the division of revenue continues, any person can petition the High Court to dissolve Parliament, the apex court said in a ruling on May 15.
The advisory opinion has caused anxiety in Parliament, with the legislators now pondering legislation to amicably solve their differences.
The opinion stemmed from a petition filed the Council of Governors seeking the apex court’s opinion after an impasse between the Senate and National Assembly over passage of the county division of revenue bill last year.
It was passed late, three months after the end of the financial year, counties were financially distressed and operations disrupted. The Senate wanted Sh327 billion for counties, the National Assembly insisted on Sh314 billion, they passed a bill calling for Sh316 billion.
The CoG wants to ensure the same disruption does not occur this year. Counties want to be assured of receiving at least 50 per cent of the previous year's allocation until the next Division of Revenue Bill is passed.
While relaying the ruling to senators last Tuesday, Nyamira Senator Okong’o Mogeni said the court warned Parliament to put its house in order or risk dissolution. Mogeni is the senior counsel representing the Senate in the case.
"If Parliament fails to enact the Division of Revenue Act within the stipulated period, the finding of the Supreme Court is that Parliament may be dissolved in line with Article 261 of the Constitution,” Mogeni said.
Calling the opinion "serious concern", Mogeni said Australia's Parliament has been dissolved at least seven times for failing to pass required legislation, thus causing a constitutional crisis and paralysing government.
The Supreme Court, Omgoni said, called on the Senate and National Assembly to pass legislation to break the impasse that may disrupt or paralyse operations of the county or national government.
“The Supreme Court has urged the two Speakers of the Houses to initiate requisite legislative action to entrench the Supreme Court’s Advisory Opinion on what happens in the event of an impasse in the passage of the annual Division of Revenue Act,” he said.
The Senate and the National Assembly have been fighting supremacy wars over their roles since 2013.
Last year, the counties were plunged into a cash crisis – leading to disruption or paralysis of their operations – after the two Houses failed to pass the Division of Revenue Bill on time, by the end of the fiscal year.
The Bill is crucial and required legislation that specifies the split in revenue between the national and county governments.
Nandi Senator Samson Cherargei, who chairs the Justice and Legal Affairs Committee, said Parliament should take the Supreme Court opinion seriously lest al legislators lose their seats.
“The Supreme Court has warned us that in case of an overstretching impasse in the passage of the Division of Revenue Bill, mediation fails and there is a total shut down in counties because of late disbursement of money or money not appropriated, then Parliament can be dissolved," he said.
“We should take this seriously because the Supreme Court has gone to the extent of telling us that if we do not organise ourselves, Parliament can easily be dissolved. This issue has elicited a lot of interest from our members,” he said.
Cherargei said his committee was willing to draft necessary legislation in concurrence with the offices of the two speakers for an amicable resolution of conflict to avoid dissolution of Parliament.
Minority leader James Orengo, a senior counsel, emphasised the need to swiftly pass legislation to resolve conflicts where mediation has failed.
“What the Supreme Court said in effect is that if this mechanism for sharing revenue equitably cannot work, plus the other reasons they gave cannot be achieved, then any person or Kenyan can go before the [High Court] for the dissolution of Parliament.
“It would mean Parliament is killing the very system of government established under the Constitution,” he said.
Taita Taveta Senator Johnes Mwaruma said the Supreme Court does not exist "just to make suggestions - whatever they say is binding.
“This is a constitutional court," he said. "This is the court that determines when there are disputes to do with the fundamental matters of the supreme law of the land,” he said.
Kisii’s Sam Ongeri said, “There has been a quarrel between the Senate and the National Assembly on the Division of Revenue Bill. This has been a thorn in the flesh that has culminated in the Supreme Court giving us an important advisory opinion that will lead us to the future.”
(Edited by V. Graham)