Economy

Senators want regulations that limit MCAs’ say on budgets revoked

mca

Attorney-General Githu Muigai. PHOTO | FILE

The Senate Thursday directed Treasury secretary Henry Rotich to revoke regulations that empower the Controller of Budget (CoB) to side-step county assemblies and allow governors to withdraw funds.

The Senate Finance Committee, chaired by Mandera senator Billow Kerrow, also asked Mr Rotich to suspend two other regulations that limit powers of county assemblies.

Senators Moses Wetang’ula, Mutula Kilonzo Jnr, Anyang’ Nyong’o and Paul Kimani said in Nairobi that the regulations are unconstitutional. The regulations allow the CoB to approve withdrawal of up to 50 per cent of county budgets, from the County Revenue Fund, without approval of Members of County Assemblies (MCAs).

But, the committee said the Public Finance Management Act is clear that it is only Parliament or the county assembly that can authorise withdrawal of money from the county revenue fund.

This is if a county Appropriation Bill for a financial year has not been assented to, or is not likely to be assented to by the beginning of that financial year.

Mr Rotich and Mrs Agnes Agnes Odhiambo, the CoB, said the regulations were meant to fix a lacuna in the law on how budgets should be approved and to check on wastage of public funds.

“These regulations are well-intentioned in accordance with the law. There have been delays in approval of budgets by the end of a financial year yet services have to be provided,” Mr Rotich said.

The senators took issue with Ms Odhiambo and Mr Rotich for relying on a flawed legal opinion from Attorney-General Githu Muigai to develop and implement the mischievous regulations.

“The correct legal position is that where there is a conflict between a regulation and a section of the law, the law takes precedence. A regulation can’t supersede a section of the law,” Mr Kilonzo Jnr said. Three counties, including Nairobi, have benefited from this misguided application of the constitution. The committee resolved to summon Prof Muigai to explain why he misled Mrs Odhiambo and Mr Rotich to break the law.

The committee said it will amend section 38 (1) of the regulations to correct the anomaly and give county assemblies necessary constitutional and legal power to approve withdrawal of funds.

The senators said a requirement that caps the expenditure of county assemblies at less than seven per cent of the total revenue should be struck out. The other regulation limits powers of county assemblies to adjust budget estimates of county executives.