Lawyer Peter Wanyama (left), for Council of Governors together with Amanya Cohen (right) and Lawyer Winfred Nyamu for Machakos governor Alfred Mutua leaving Milimani law courts after court ruled it was proper and legal for the county chiefs to appear before the Senate Public Accounts Committee to respond to questions over mismanaged county finances.
BY SAM ALFAN.
Senator’s wins court battle to summon governors to answer questions on public management after three judge bench rules in their favor.
The five judge bench led by presiding Judge, Justices Isaac Lenaola, Mumbi Ngugi and George Odunga ruled that it was proper and legal for the county chiefs to appear before the Senate Public Accounts Committee to respond to questions over mismanaged county finances.
The judges held that Article 96 of the Constitution gives authority to the Senate to undertake an oversight function.
Governors had argued through their lawyer Peter Wanyama that the Senate could not personally summon them to appear before it to answer queries on use of county finances.
They had contended that the Senate was limited to oversight institutions which manage national revenue allocated to counties like the Treasury.
“The move by the Senate to summon us is total disregard of the procedure and requirements of public finance management under the Public Finance Management Act 2012,” the Governors argued.
However, the judges declared that the Senate does not have the sole constitutional powers to direct the National Treasury and Controller of Budget not to release funds to counties without following the provisions of Article 225 of the constitution.
The court said that stoppage of funds to a county public entity can only be done by following the provisions of article 225 of the constitution.
The Council of Governors believes that the Senate can only exercise its powers under Article 125 of the Constitution to scrutinize county financial and other records for purposes of making a determination with regard to impeachment
The petition concerns the constitutionality of summons dated 12 August last year issued to certain County Governors by the Senate through its seasonal committee on county public accounts and investments.
The summoned governors namely Isaac Ruto of Bomet County William Kabogo of Kiambu County, Mwangi wa Iria of Muranga County and Jack Ranguma of Kismuu County were to appear before the said committee on August 26 last year to allegedly answer questions on county financial management as raised in the report of the Auditor General for the financial year 2012/13.
In their petition, the petitioners questioned the constitutionality of the said witness summons and the constitutional power and authority of the senate to pass a resolution directing the controller of budget not to authorize withdrawals of public funds until satisfactory powers are provided by the petitioners to the audit queries.
According to the petitioners, the summons contravened article 226 (2) of the constitution which provides that the accounting officer of a county public entity is accountable to the county assembly for its financial management. They claim that in summoning the County governors, the senate is usurping powers of county assemblies and in any event that county governors are not
The judge declared that it is proper, legal and constitutional for Members of the executive committee responsible for finance to appear before the Senate or any of its committee to answer on county government finances and to generally provide information that helps the Senate to undertake its oversight functions as stipulated in article 96 of the constitution.
He also declared that the senate does not have sole constitutional powers to direct the National Treasury and Controller of Budget not to release funds to counties without following the provisions of article 225 of the constitution..
He issued a declaration that stoppage of funds to a county public entity can only be done by following the provisions of article 225 of the constitution.
An order to quash the resolution of the senate issued on August 2 2014 that purports to direct the National Treasury and the Controller of Budget not to release funds to Kiambu, Bomnet Kisumu and Murang’a Counties.
He dismissed a declaration which stated that the senate cannot summon governors to personally appear before it to answer questions on County government finances in total disregard of the procedure and requirements of public finance management that is stipulated by the Public Finance Management Act 2012.
He also dismissed a declaration that stated the senate cannot summon an accounting officer of the county government to answer questions on county financial management at the first instance.
He said it must fist allow the oversight and legislative mechanisms at the County level to be concluded given that these governments are functional distinct and are based on the principle of separation of powers.
He also dismissed a declaration that the senate’s power is limited to oversight over national agencies which manage national revenue allocated to counties such as the National Treasury.
The petitioners challenged the resolution made by the Senate and have submitted that it did not have any constitutional power to order the CS, National Treasury and the Controller of Budget not to authorize withdrawal of funds to the named counties.
The judge held that the senate cannot therefore act in disregard of the constitution and at the same time claim to exercise powers under the same constitution.
The judges held that it is clearly within the powers of the Cabinet Secretary to stop transfer of funds to county entities for the reasons stated under section 93 and 94 of the Public finance Management Act.
He can however only do so with the approval of Parliament as can be seen from the provisions of section 97 (2).
In this instant petition, it is the senate that initiated the stoppage of withdrawal of funds and directed the Cabinet Secretary to stop the said withdrawal.
He said the Senate has no powers to direct the CS to stop the transfer of funds allegedly while exercising its oversight role.
He said the grounds for doing so are also clear and one of them is not refusal by Governors to honor summons by senate. He said stoppage of withdrawal of funds is certainly not one of the ways that the court enforced the attendance of witnesses neither should the Senate purport to have such powers.
“It is our finding that the resolution of the senate directed at the Cabinet Secretary for finance and the controller of budget was not founded in law and cannot stand,”
He said it’s crystal clear that the senate has the mandate to receive the financial statements of a county government as well as the audit report of the auditor general.
It was petitioner’s contention that the senator’s roles are limited to making recommendations of the improvement of government public finances and we agree with the petitioners to that extent.
Petitioners council of governors, Alfred Mutua, Patrick Khaemba, Ahmed Mohamed, Wycliffe oparanya, James Onwae and Martin Wambora sued the senate.
Governor has vowed to appeal the three judge bench through their lawyer Peter Wanyama.