• Kihara Kariuki says counties have recourse in access to County Revenue Fund or if Parliament enters consent with parties in revenue bill case.
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County governments may not get Sh155 billion from the National Treasury to fund operations while waiting for an end to the Division of Revenue stalemate.
Attorney General Kihara Kariuki, in an advisory opinion, said there is no legal basis for the advance release of the monies.
This is likely to add pain to the already cash-strapped counties whose workers have threatened to down their tools, citing delayed salaries.
A number of county governments are unable to service official vehicles, pay suppliers of medical consumables, and settle pending bills.
Development has taken a back stage in the face of the cash crunch occasioned by supremacy battles pitting the National Assembly against the Senate.
In his opinion, the AG says ending the stalemate will be the key to unlocking the billions set aside for the regional governments.
“There is no basis under our current legal architecture upon which the National Treasury can administratively advance funds to county governments,” Kariuki says.
He avers that the onus is on Parliament to enact an appropriate legal framework to facilitate the requisite withdrawals from the Consolidated Fund.
Without a Division of Revenue Act, the National Treasury cannot release monies, to the detriment of the devolved units.
In a recent parliamentary meeting, acting Cabinet Secretary Ukur Yatani said the ministry was willing to release half of Sh310 billion.
However, he said that was only possible if there was a law backing the transaction.
Senators – pushing for half of Sh314 - argued the money could be released through a consent signed in court.
Senators and governors are before the Supreme Court seeking interpretation of which House has say on the Division of Revenue Bill.
Chief Justice David Maraga vouched for mediation – of which the two Houses have formed teams to steer the process.
In agreement with the proposal by Senator Mutula Kilonzo (Makueni), Kariuki said the consent – if adopted an order by the Supreme Court, can form legal basis for the release.
“The Senate and National Assembly may use the opportunity provided in the proceedings to record an amicable settlement…this shall constitute sufficient legal basis for advancing funds to county governments,” the advisory reads in part.
Another stop-gap measure, the AG says, is for counties to access funds from their respective funds upon authorisation by the respective regional assemblies.
However, this would leave some devolved units disadvantaged; especially those without revenue sources that match their counterparts.
AG Kariuki avers that if need be, MPs – who are on recess, be recalled to a special sitting to discuss the revenue stalemate.
Such a sitting will bank on the outcome of the mediation process, whose timeline is not set in the law.
The first mediation meeting is scheduled next week – probably Tuesday, setting the stage for whether the members would drop their hardline stances.
While senators want counties to get Sh335 billion, their counterparts in the National Assembly had settled for Sh316.5 billion, and is processing a bill to that effect.
Kariuki says since monies advanced to counties constitute a withdrawal from the Consolidated Fund, hence the difficulties in occasioning its release.
Withdrawals can only be done through an Appropriation Act of Parliament or as a charge against the Fund as authorised by the Constitution.
“Significantly, the constitution requires the approval of Parliament must be sought before any spending,” the advisory reads in part.
“What is clear from the foregoing is that there can be no withdrawal from the Consolidated Fund without the authorisation of Parliament.”
Kariuki argues that in the longer term, Parliament should amend the law to ensure county governments are not handicapped in the event the DoRB is not enacted within time.