BY MOSES CHELANGA
The Senate’s Standing Committee on Finance, Commerce and Economic Affairs summoned nine Governors and Executive Committee members in charge of finance to respond to county finance and fiscal issues. This has raised questions whether the Senate has the powers; in fact, the Council of Governors is seeking advisory opinion from the Supreme Court.
In the meantime, Justice Mumbi Ngugi issued temporary orders restraining the Senate from summoning the nine Governors and suspended the summonses that had earlier been issued in Petition No. 74 of 2014, International Legal Consultancy Group v. The Senate & another.
The reasoning of the court was principally that the Senate has no business exercising roles of finance oversight over the County Governments when there is the County Assembly. The court relied on article 226(2) of the Constitution which provides as follows: The accounting officer of a national public entity is accountable to the National Assembly for its financial management, and the accounting officer of a county public entity is accountable to the County Assembly for its financial management.
While appreciating that the Senate plays a crucial role in devolution, the good judge advised the Senate to stick to its functional lane; she says: The court appreciates that the Senate has an important role to play in the implementation of the Constitution, particularly so with regard to devolved government. However, just like all other State organs, it is bound by the Constitution, and it cannot arrogate to itself powers that it has not been given under the Constitution. On the material before me, and taking into account the provisions of Article 226(2), the Senate may have overstepped its mandate in purporting to summon the Governors and the County Finance Committees.
While it does have power under Article 125 to summon anyone, that power cannot have been intended to be exercised arbitrarily and in isolation. Put differently, the provisions of Article 125 cannot be read in isolation, but must be read in conjunction with other provisions of the Constitution which allocate functions and powers to the various organs created by the Constitution
What took my attention in the whole ruling is this gem of wisdom from the Lady Justice in the following wordings: As a nation, we can choose to abide by the dictates of the Constitution, or to disregard it, or to apply it selectively, picking only those of its provisions that suit our immediate purposes, and disregarding those that we consider inconvenient. In the short term, this may suit some limited, individual or institutional interests, but it does not augur well for the people of Kenya.
Why the Judge Was Wrong
Although, the substantive petition is yet to be heard and determined, the judge read Article 226(2) of the Constitution in isolation, highlighted and over-emphasised it while ignoring the other provisions of the law in the same issue.
The judge for example did not consider Article 96 (1) which provides for the role of the Senate to include representing the counties, serving and protecting the interest of the counties and their governments. Articles 96 (3) is also very instructive in this context and goes: The Senate determines the allocation of national revenue among counties, as provided in Article 217, and exercises oversight over national revenue allocated to the County Governments.
The oversight role of the Senate over national revenue allocated to the County Governments is wide power and authority that extends to county public finance and budget. The summons by the Senate sought documentation and information on Controller of Budget’s County Budget Implementation Review Report, approved budget estimates and supplementary budget estimates. Now some tell me this is not function of senate under article 96(3).
Article 226(2) on the other hand is applicable only to accounting officers and public finance. Senate’s mandate is bigger than that.
Article 125 of the Constitution empowers the Senate to summon any person to appear before it for the purpose of giving evidence or providing information. The summons to the governors was in exercise of such power. The Senate may even summon the President under this provision in any issue within its mandate.
Oversight over County Governments is on two levels; by the County Assemblies at the county level and by the Senate at the national level. That is the constitution.
One of the key principles in constitutional interpretation is what has come to be known as the harmonious interpretation of the Constitution, meaning that a provision of the Constitution should be interpreted in harmony with the whole document of the Constitution and not in isolation. Each section of the Constitution should sustain and not destroy the other.
The court could only issue an injunction against the Senate if it was demonstrated that the Senate is abusing its parliamentary process, as it is doing now, to achieve ulterior political interest rather than genuinely providing oversight. In my view the court did not apply its mind correctly on the issue.
I hope that in the final judgment, the three-bench judges will reconsider the issue and put the record straight.
When the order was issued, the Senate Committee through its chair Senator Billow Kerrow said that while it disagrees with the court, it will obey the court order. This is what I call rule of law, not just ignoring the court and calling it names and throwing tantrums. Billow Kerrow distinguished himself from the parliamentary crowd as a fine legislator.
This article was first published at www.ilawkenya.com
(Chelanga is an Advocate of the High Court of Kenya, Founder and Publisher of iLaw Kenya)