MPs Believe They Can Break The Law With Impunity

It appears Kenya’s National Assembly does not respect certain court judgements. The National Assembly on Thursday shamelessly cast aside the High Court of Kenya’s constitutional interpretation of the correct and legal procedure to access funds from the Consolidated Fund.

They proceeded to debate and vote on giving the Executive arm of government access to half of the 2012 budget without a statutory basis. The Deputy Speaker’s ruling ignored the ratio decedendi of the decision of Justice Majanja in Petition 108 of 2011 delivered on December 23 2011 in the case of Mati and Adieno vs. Attorney General and Minister of Finance. (It can be read at http://blog.marsgroupkenya.org/?p=2684). Contempt of court such as this requires urgent and punitive remedy.

The verbal personal undertaking by Finance minister Minister Githae has been accepted as sufficient to satisfy the National Assembly to authorize withdrawal from the Consolidated Fund of over Sh424 billion. This is despite the fact that the National Assembly, and the Deputy Speaker must be fully aware that Article 206 of the Constitution of Kenya requires that withdrawals from the Consolidated Fund must be based on written statute laws – in this case the Appropriation Bill.

The Attorney General and the Finance minister were both parties in a constitutional petition that settled the interpretation of the Constitution vis-a-vis the parliamentary procedure for vote on account. The decision went against both the Attorney General and the Finance Minister. Despite the Deputy Speaker’s claim in his ruling, and subsequent interventions, the decision was served on all parties to the litigation. Further, because there were no grounds, Justice Majanja’s decision has never been appealed by either the Attorney General or the Finance Minister.

The National Assembly has compounded the situation by proceeding to release these funds. It is not surprising that the Deputy Speaker chose to overturn a court decision over money. The check and balances between the Legislature and the Executive over money matters has broken down. The courts who have the sacred duty of opposing collusion can say nothing. The poor people of Kenya bear the brunt of the conspiracy. The Speaker has on several occasions ruled that the courts have the final jurisdiction to interpret the Constitution, and even invited MPs and the general public to go to court if a matter required interpretation. We are therefore surprised and saddened that he would stand on a ruling he made on June 7 2011 that was interpreted by the Constitutional Court and found wanting in all statutory basis apart from efficacy.

The National Assembly has arrogated itself the power to authorise spending by the Executive without legal or constitutional basis. It has defied the settled law in the Constitutional Court judgement rendered by Justice David Majanja. The Executive has persuaded the National Assembly to allow it to withdraw over Sh424 billion for possibly nebulous purposes. Which serious person believes that the undertaking could be enforced against Githae personally if he fails to meet the undertaking?

Hopefully the Controller of Budget will look at the big picture and realize that the National Assembly approval is in breach of the Constitution. To wit Article 206 of the Constitution requires every withdrawal form the Consolidated Fund to be based on a statute and not merely on motions which the President has approved. The Controller of Budget should be prepared to inquire into the National Assembly’s procedures and the underlying basis of the procedures. He can then exercise a proper judgement as to whether the National Assembly’s resolution is constitutional regardless of the Deputy Speaker’s ruing.

Last year the same procedure was used and the court did not hesitate to find that the National Assembly was in breach of the Constitution. Katiba Mpya- Tabia Mpya – Game on! After August 2010, we, the People of Kenya, are the Sovereigns. Jua Kali government is no longer with us.