Senators have been dealt with a huge setback after the Supreme Court refused them access to a Sh1 billion fund set aside for an oversight of county projects.
The Supreme Court panel led by Chief Justice Martha Koome affirmed a ruling declaring the National Assembly’s County Government Amendment Act of 2014, which was enacted in cooperation with the Senate to be unconstitutional, null and invalid.
The ruling came after the Senate, National Assembly and 47 Senators filed an appeal seeking to overturn a decision by the Court of Appeal and the High Court declaring the act allowing access to county operations to be unconstitutional.
The money had been sought by legislators since July 24, 2014 when they passed the County Government Amendment Act (CGAA) bill No. 2, which obtained Presidential assent on July 30, 2014.
Justices Koome, Mohammed Ibrahim, Smokin Wanjala, William Ouko, and Njoki Ndung’u dismissed the appeal stating that senators cannot oversee county administrations at the county level because that responsibility belongs to the County Assembly.
“They cannot be involved in the co-coordination of programmes that are purely county programmes, or county project approvals or actual implementation of county projects as these are county executive functions. It is equally untenable for Senators, who oversee county resources from the national government, to convene and chair county committees,” the judges ruled.
The County Government Act was revised by adding a new section 91A which established County Development Boards (CDBs) in each of Kenya’s 47 counties. 91B and 91C were likewise included in the bill.
These revisions establish the CDBs, their composition and their funding sources as well as making it illegal to block the CDBs’ functions.
Members of the National Assembly representing constituencies within respective counties, members of county assemblies and members of the executive working within respective counties were to make up the CDBs which would be chaired by the county’s Senator.
The CDBs were given the responsibility of coordinating and harmonising county development plans and projects under the Act.
According to the CGAA’s Memorandum of Objects and Reasons, the Act aimed to give CDBs the authority to study and adopt county integrated development plans and county annual budgets before they were presented to the County Assemblies for approval.
Following the enactment of the CGAA and the creation of the CDBs, the Council of Governors, which includes all 47 county governors, filed a lawsuit contesting the CDBs’ constitutionality.
County Speakers from all 47 counties, the Attorney General, the Commission for the Implementation of the Constitution, Katiba Institute and four other people were among those who challenged the CGAA.
In allocation of functions, they alleged that the provisions of the CGAA grant powers to state organs in conflict with the allocation of functions in the Constitution.
Governors on their part asked the Court to declare the provisions of Section 91A of the CGAA, which vests various functions in the CDBs, unconstitutional for violating Articles 6(2); 95, 96, 174(1), 175, 179(1), 179(4), 183(1), 185(3) and 189(1) of the Constitution.
County Speakers from all 47 counties, the Attorney General, the Commission for the Implementation of the Constitution, Katiba Institute and four other people were among those who challenged the CGAA.
“Article 6(2) provides that governments at national and county level are distinct and inter-dependent. Its contention is that Senators are members of the national parliament which is vested with legislative authority in terms of Article 94 of the Constitution, and they have no role to play at county level,” the governors informed the court.
They also claimed that the Constitution does not contemplate senators and members of the National Assembly micromanaging planning and budgeting in counties, and that section 91A of the CGAA violates the Constitution by giving senators and members of the National Assembly coordination and implementation roles in county governments.
