NAIROBI, Kenya, Aug 24 – The Commission for the Implementation of the Constitution on Wednesday said it had written to the President, Prime Minister, House Speaker and Attorney General to resolve the standoff surrounding two crucial public finance Bills, which were approved by the Cabinet on Tuesday.
Speaking to journalists in Nairobi, CIC Chairman Charles Nyachae explained that his commission would still take legal action against the Executive if it published the Contingencies Fund and County Emergencies Bill, 2011, as well as the National Government Loans Guarantee Bill, 2011.
The two Bills were approved by the Cabinet to temporarily resolve a dispute between the Local Government Ministry and the Treasury over the Public Finance Management (PFM) Bill.
The CIC is opposed to having two bills and wants the provisions incorporated in the PFM Bill.
And in a new twist into the saga, Mr Nyachae claimed that the AG had just informed his commission that the two draft copies, which were submitted to his commission on Tuesday afternoon, did not have the Cabinet’s input.
But he added that the AG told his commission that the amended versions would be made available to them on Wednesday afternoon while simultaneously being sent to the Government Printer rendering their input futile. Mr Nyachae who had been chairing a stakeholders’ meeting on the Bills since early Wednesday morning read mischief in the Cabinet’s new position.
“It then, in the course of the morning, transpires that what the AG sent to us are not the Bills that include whatever the Cabinet’s input was. And the AG tells us, and this is the important part, that the new Bills will be simultaneously sent to us while being released to the Government Printer,” he said.
Article 261 (4) and Section 14 under the Sixth Schedule indicate that the CIC must be consulted and involved in the implementation of Bills.
Article 14 (2) under the Sixth Schedule specifically states that laws touching on devolution may only be enacted after the CIC and the Commission on Revenue Allocation have been adequately consulted and their recommendations forwarded to Parliament.
It further states that the two commissions shall be given at least 30 days to consider such legislation.
The implementation commission, which had been looking at the Bills, also warned of significant repercussions of implementing them without resolving the uncertainty surrounding their frameworks.
CIC Commissioner Kamotho Waiganjo explained that the definitions issued in the Contingencies’ Fund Bill needed to be cleared while at the same time clarifying who would determine contingencies at both the county and national government levels.
Mr Waiganjo also observed that there was a critical need to establish the correlation between the two governments in relation to the Contingencies Fund.
“How does utilisation of contingencies fund affect decision making processes at the counties as opposed to national government? What will be the nature of consultative processes so that you ensure that devolved governments are involved in determining how contingencies funds are utilized?” he posed.
He also raised concern with the question on whether county emergency funds would be extracted from the county allocation or whether they would come from the general Contingency Fund.
“Are counties required to provide for their emergencies from their allocated fund or should they get some allocation from the general contingency fund? That’s an issue that requires significant discussion so you can’t rush it,” he said.
Mr Waiganjo, who is charged with handling the financial management Bills, also observed that the Loans Guarantee Bill needed further scrutiny. He argued that it was important to set a criteria on how the law would be applied saying that provision was lacking in the Bill.
The Bill allows the State to guarantee loans taken by private entities, such as banks, and the government risks losing money from the Exchequer if such entities default on their loans.
“How will the government determine who to guarantee especially in relation to counties? How is that decision going to be made? Is it entirely on the basis of national government decision or is there a framework for discussion and consultation between the national and county governments?” he asked.
On Saturday the CIC called for a 30-day extension of time over the two financial management Bills citing the implications it would have on the devolved government if they were rushed.
“There are key issues that remain outstanding and the view of Cabinet alone or even Parliament alone is not sufficient. These issues need to be subjected to stakeholder involvement; we cannot rush the Bills to meet one deadline but violate the precise constitutional provision,” he argued.