COUNTY REVENUE BILL

Governors closing counties affront to devolution

Governors should have mobilised for their governments to respond to the delayed disbursements.

In Summary

• Governors argued that the delay by the Senate to approve the allocation formula was a ploy to deny them cash so as to turn residents against them.

•  However, senators were doing what they were elected to do — debate.

Council of Governors chair Wycliffe Oparanya during a press briefing on Wednesday, September 17, 2020.
Council of Governors chair Wycliffe Oparanya during a press briefing on Wednesday, September 17, 2020.
Image: COG

Following the stalemate in the Senate over the revenue formula, the Council of Governors threatened to shut down counties, perhaps to hit at the senators.

This threat raises key questions on devolution. Can the delay in disbursement of county cash be enough justification to suspend service delivery?

Has the central government field offices received their first quota allocation for the current financial year and if not, should they also close their offices?

Devolution is a replica of the national government operational philosophy and it's of central concern to ask if a government can successfully apply for a leave of absence and still hold brief as a government as constituted under the philosophy of ‘social contract’.

 

This is not the first time counties have to contend with delayed funds. It is on record that 14 counties were unable to undertake any development for the first half of the 2017-18 financial year.

The counties were able to surmount those challenges and the current situation is not different as our resilience to sustain the tempo of devolution must not wear out.

Governors argued that the delay by the Senate to approve the allocation formula was a ploy to deny them cash so as to turn residents against them.

This is compounded by arguments that Treasury holds some disbursements for the 2019-20 financial year.

Treasury Cabinet Secretary Ukur Yatani explained that this is linked to the revenue performance then and the impact of Covid-19 on the economy.

Governors closing counties is an affront to devolution. Senators were doing what they were elected to do — debate.

The debate is allowed to proceed as guided by the Standing Orders. Article 217 (1) of the Constitution lays the framework that once every five years, the Senate shall determine the basis for allocating among the counties the share of national revenue.

Their background of discussion is outlined in Article 216 (1), which mandates the Commission on Revenue Allocation recommend the basis for equitable sharing of revenue.

The letter and spirit of the Constitution were adhered to as the CRA submitted its recommendations on the third basis to the Senate for consideration.

The Committee on Finance and Budget considered the proposal and engendered public participation and consequently tabled its report.

By July 13, a notice of motion had been done for the adoption of the report.

 

What followed is a normal legislative process as amendments were made as per the Standing Orders and a vote was taken.

Anyone attempting to refer to the disagreements in the House in a manner proximate to the political assassination of devolution is devoid of the fruits of parliamentary democracy that insulates legislators from external influence and pressure to agitate for the interests of their constituents.

I am encouraged by the stewardship of President Uhuru Kenyatta and ODM leader Raila Odinga by taking it in their stride when senators by step party positions and stand for the interests of their people, irrespective of the level and focal point of the interests as referred.

Senators did their job.

That said, ‘doubting Thomases have every right of the imagination but some limits should be drawn.

Most governors are on their second term and it is highly unlikely that senators were targeting them. Besides, those who loudly opposed the formula are beyond doubt of anything to score against governors.

Devolved functions are key to Kenyans survival in their daily lives. Any attempt to deny them services by closing down county operations would have been a major recession to our devolution efforts.

Anyone in the desire to provide leadership should embrace the fact that national challenges must be circumvented by shrewd and innovative ideas and proposals as President Kenyatta did during the early stages of Covid-19.

There were no available funds available but he mobilised towards stabilising the country by responding to the emergency.

Governors should also have mobilised for their governments to respond to the delayed disbursements.

Kenyans don’t care where county resources come from. What they know is that they have semi-presidents in their counties who have powers to solve their problems.

The threat to shutdown counties is a taint to our devolution, which ought to be consolidated by all means.

It goes without saying that closure of counties is an administrative proposal not envisaged by the Constitution.

It is the expectation of the Constitution that services to the citizens shall be continuously provided for, without disruptions and that is why no other entity is envisioned to provide the same services when the counties are unable to.

As such, unless the county governments are suspended under Article 192, residents should continue accessing the services they need.

The architecture of the Constitution makes clear that it is only the President who may suspend a county government. And even the referred suspension cannot validate unless Article 192 (3) is attended to.

It follows that constitutionally no vacuum should be created by any entity to deny citizen from the dividends of their sovereign.

Dr Patrick Kasyula teaches governance at the University of Nairobi