We have “Upper House privilege” in division of revenue, maintains National Assembly in suit

Supremacy battles between the National Assembly and the Senate played out at the Supreme Court on Tuesday during the hearing of an application for an Advisory Opinion on the Division of Revenue Bill 2019.

Lawyers representing the Council of Governors led by Fred Ngatia and those representing Senate insisted that the equitable share of revenue should be based on the recommendation of the Commission on Revenue Allocation.

Ngatia accused the National Assembly of only relying on an opinion issued by Attorney General – Kihara Kariuki, terming the CRA recommendation on revenue division as a nonbinding proposal.

“Attorney General made this submission, that a recommendation is just a proposal and it cannot possibly be binding. National Assembly also takes the same position and it says that it is their exclusive mandate to legislate. So, they take Division of Revenue Bill as nothing more than any other means of legislation,” Ngatia said.

“My lords, with those two extreme views, you see where the difficulty starts. It started with the origin of this country as an independent country where it was the preserve of the National Assembly to regulate budget and that is not something they would want to share with any other party,” told a Supreme Court bench hearing the matter, led by Chief Justice David Maraga.

Ngatia pleaded with the court to give an advisory that will favor county governments saying the division of revenue crisis experienced annually since 2013 will continue if the National Assembly continues to determine how much is allocated to counties without Senate’s input.

He urged the court to rule that the recommendation given by CRA should be the only one applied in the equitable share process between the two levels of the government.

National Assembly lawyers led by Peter Kaluma however maintained that Division of Revenue process purely lies with the House insisting the Senate has no hand in it.

He insisted that when two Houses disagree on matters division of revenue, the position of the National Assembly overrides that of the Senate.

“If we may give examples of various jurisdictions in which Parliament is bicameral from United States to United Kingdom to India among other countries, what happens is that on money matters, if there is any disagreement the position of the House which is equivalent to National Assembly takes over,” Kaluma said.

“I do not see any issue if the Senate is not involved in determination of Division of Revenue. If it is about devolution and oversighting the counties, it can be done by the National Assembly as well. The oversight role is a collective role, but I still maintain that it is an exclusive role of the National Assembly to decide how much is allocated to counties.”

After a long back and forth amongst the lawyers, Chief justice David Maraga said the court will deliver its advisory opinion on notice.

Last year in September, the Senate accepted a KSh316.5 billion allocation for counties proposed in a revised 2019 Division of Revenue Bill, despite expressing reservations on the enactment of the Appropriation Act (2019) without its concurrence.

Majority Leader Kipchumba Murkomen and his Minority counterpart James Orengo vowed to sustain their petition challenging the Appropriation Act (2019).

“As you are aware that the Division of Revenue forms the basis upon which the two levels of government prepare legal instruments for public expenditure. The National Assembly proceeded to publish, consider and pass an Appropriation Act setting up expenditure for National Government. Therefore, as the counties are headed to a halt sooner rather than later, the national government has continued to operate unobstructed,” Orengo said on Thursday.

“It is a position of the Senate that, it is a flagrant violation of the constitution for the National Assembly and the National Government to proceed unilaterally to determine the allocation to the national government independent of the enactment of Division of Revenue Act.

“By passing the Appropriation Act (2019) the National Assembly unlawfully and unconstitutionally allocated to the national government a share of revenue raised nationally without a determination of what that share should be and without an attendant allocation to the counties.”

Counties were seeking an allocation of KSh335 billion for the 2019/20 Financial Year but the national government through the national assembly insisted on KSh316.5 billion, a disagreement that saw an application for advisory opinion filed at the Supreme Court.