Some governors have threatened to go to court to compel the national government to release county funds on time and without discrimination.
This comes as claims emerged that most devolved units run by governors affiliated to the opposition National Super Alliance (Nasa) had not received money allocated to them from the National Treasury unlike those headed by Jubilee politicians.
The controversy comes at a time when the ruling Jubilee Party is said to be planning to take over the running of the Council of Governors (CoG), including its secretariat. The council is currently chaired by Turkana’s Josphat Nanok of Nasa.
A section of Nasa governors who spoke to the Sunday Nation said they are yet to receive any disbursements since July, a situation they claimed is part of a wider scheme by the State to starve their counties of their money as the first step towards killing devolution as was the case in the 1960s. The withholding of cash is also said to be linked to suspicion by some senior Jubilee officials that opposition governors fund the campaigns of their presidential candidate Raila Odinga.
On Saturday, Kakamega Governor Wycliffe Oparanya declared he will be moving to the High Court to seek a constitutional interpretation on the government’s decision to delay the release of the funds as it totally violates the provisions of the Constitution.
“I will be moving to court as Kakamega County to seek constitutional interpretation on when the State is supposed to release the funds. We are sitting in the offices doing nothing yet our people are suffering for lack of services. The President and his deputy should be jailed for killing devolution,” Mr Oparanya declared.
National Treasury Cabinet Secretary Henry Rotich, however, dismissed the claim, maintaining that delays in the disbursements had been occasioned by problems in the County Allocation of Revenue Act (Cara), enacted by Parliament in June, and the Cash Disbursements Schedule, which the Senate adopted in late August.
“The two were not properly synchronised, which occasioned the delay. But we shall proceed to disburse once the anomaly is rectified,” he said.
After the enactment of Cara, Attorney-General Githu Muigai cited clause 5 (2) of the law, which made reference to sources of conditional allocations for loans and grants, and asked the Senate to synchronise the clause.
The clause had set out four conditional grants for a loan from the World Bank for the Transforming Health Systems for Universal Care Project, the World Bank’s National Agricultural and Rural Inclusive Growth Project, a grant by Danida for the universal healthcare in the devolved system programme and a grant from the European Union for instruments for devolution advice and support.
The AG recommended that the bill be amended to provide for columns E, F, G and H to conform with provisions of clause 5 (2), and the draft law was revised to resolve the discrepancy.
Mr Rotich noted that the counties have regularly received their cash depending on the balance of their money held in the account at the Central Bank of Kenya (CBK).
“Any county that has a balance lower than Sh300 million at the CBK has been receiving its share of revenue. We shall continue disbursing that way until the problems in the law and schedule are clarified, then we shall return to the normal situation,” he said.
Devolution Cabinet Secretary Mwangi Kiunjuri dismissed claims that his ministry was behaving like a prefect, pointing out that it has carried out its mandate as required under the law, just like all other ministries have done.
“It is all frustration around money, but let me tell the grumbling governors that it is not my ministry’s mandate to disburse funds,” he said, while calling for patience from the governors.
“This is the wrong time for the governors to start these blame games. Those who are doing this merely want to politicise the issue and this is the wrong time for such actions. We know some of them are desperately looking for funds to use in campaigning for their presidential candidate,” he added.
The CoG chairman last week wrote to Mr Rotich, complaining about the delay in the disbursements. He reminded the Treasury that counties cannot operate without funds.
“The council would like to highlight that due to the late approval of the schedule, county governments have not received their monthly disbursements dating back to the month of July,” said Mr Nanok.
On Wednesday, the Senate, through the clerk, wrote to the Treasury, requesting quick release of cash to facilitate service delivery by county governments.
The Constitution requires the national government to ensure counties are adequately funded to effectively carry out their mandate as provided for in Schedule Four of the supreme law.
The Public Finance Management Act provides that funds to counties shall be disbursed quarterly, at least 15 days before the end of every quarter, but the government has, instead, opted to disburse the funds every month, something Mr Oparanya said is illegal.
Mr Oparanya hopes to exploit these provisions by seeking a constitutional interpretation from the High Court as to when the national government should disburse the money to counties.
Mr Oparanya said his county is already in arrears and even if the funds are released now, it would take another four months to deliver services as procurement requires time.
At the same time, Kitui Governor Charity Ngilu said she is yet to settle down so as to understand the intricacies of the disbursements.
“I don’t know as yet because, honestly, I am yet to set my systems,” she replied, when asked whether the county had received its share of funding. “But if what you are asking is true, let me remind you that this is a constitutional matter and not a favour from the State.”
However, there are individuals who believe the delay to disburse the funds was a deliberate Jubilee government policy as part of its anti-Odinga rhetoric, with some suggesting the delay was strictly restricted to counties in Nasa strongholds.
The CoG, the Intergovernmental Budget and Economic Council (IBEC) and the Summit, all key components in the implementation of devolution, have not met for a long time in what Mr Oparanya said is part of the problem devolution is going through.
The summit is chaired by the President and the IBEC by the Deputy President.
A retreat for governors and their deputies scheduled for this month was cancelled at the last minute without proper explanation in what sources say was part of the fight for control.
That Jubilee is planning to hoist a “friendly” governor to the helm of the CoG as part of wider plans to use the strength of its governors to control the organisation is no longer a secret. The plan was revealed after the August 8 election, when President Kenyatta met governors aligned to his party.
Kwale Governor Salim Mvurya, who successfully defended his seat on a Jubilee ticket after defecting from ODM, is favoured to take over as the chairman, with a female deputy, either Ms Anne Waiguru (Kirinyaga) or Dr Joyce Laboso (Bomet). The proposal also includes ensuring that Jubilee governors take over all the committees of the council as part of its elaborate efforts for control.