Counties are staring at missing out on billions in additional allocation until at least March next year, with senators and MPs failing to agree on how much should be allocated as conditional grants.
Lawmakers are wrangling over the Sh16 billion difference. The latest development comes after a Monday meeting ended in no agreement with a court case on Sh10.52 billion Road Maintenance Levy Fund (RMLF) scuttling any agreement. The National Assembly had approved Sh46 billion as conditional grants to counties for this financial year, while the Senate amended the same, approving Sh62 billion, thus resulting in a stalemate.
A proposal by senators to canvas six out of seven contentious issues that are not sub judice was opposed by MPs who wanted the mediation to be wholesome.
While the committee's co-chair Tabitha Mutinda pushed for a meeting tomorrow, her counterpart Ndindi Nyoro (Kiharu) warned that they may be engaged in an exercise in futility.
The other contentious issues include allocation to county headquarters for five counties, reduction of allocation to county aggregation and industrial parks, Sh1.1 billion mineral royalties, Sh116 million pending court fines, Sh651 million reduction on stipends to community health promoters and budget for devolved museum function.
“I feel like we should agree to discuss other issues that are not before court and conclude them on Wednesday since the Senate is going into recess on Thursday,” Senator Mutinda said. “The elephant in the room is RMLF. It is a matter in court. Are we able to agree and say let the matter be handled in court? I am saying all these for us to make progress and positively conclude this matter.”
However, Mr Nyoro said rushing the process will not achieve anything as the Bill would collapse should the RMLF case not be withdrawn and it will take another six months for a new one to be reintroduced. He said any variation on the Bill depends on the National Assembly approving a second supplementary budget.
“Tactics must change if we need counties to get additional funds. The undercurrents we see from MPs is what they will get from the floor—between canvassing and agreeing on a comprehensive report or rushing the process just to end the meetings. It means there will be no additional allocation to counties if this Bill fails before the National Assembly. Let's not rush this process just to finish. What I am seeing is a rush to complete the process and start another debate. Let us zoom in on real issues which are both political and technical," he said.
"I do not want us to cheat ourselves. We cannot agree on the furniture of a house when we have no house in place. It is my opinion that we meet when there is no matter in court; without that, the next meeting will just be a walk in circles."
Mandera East MP Hussein Weytan sided with Mr Nyoro, saying there was no justification to allocate additional funds to counties because they cannot see what they are doing with the other funds they already have.
“This is one Bill and there is no way we can have one part and ignore the other. Let us wait until the RMLF issue is resolved and that is around March 2024. There is a stalemate already where people have taken sides. We are wasting time here because even if we agree, this matter will fail in the National Assembly," he said.
Soi MP David Kiplagat added that holding that RMLF is sub judice pollutes the entire Bill unless a new Bill is crafted.
However, Wajir Senator Abass Mohamed interjected, saying they should be fair to counties because all the projects are initiatives of the national government.
Kitui Senator Enoch Wambua said, “Let us not see this thing as either the National Assembly or Senate thing and approach it as one. Let the legal team advise on the issue of RMLF and if we can isolate it and wait for the court to make their decision, we proceed with other items.”
"If the RMLF case is active in court and it's part of this Bill, then it poisons it. We are saying we have a poison and we need to leave it and come up with a new Bill. It is like somebody cutting your legs and still forcing you to walk. It can't happen," said Mr Kiplagat.
"This is a cat and mouse game from our brothers in the counties because the petitioners are governors. The senators are playing monkey business telling us to isolate one component and go on with others. We have two choices, let the governors withdraw the case and proceed or we come up with a new Bill that has no poison then we proceed. Even if we sit here until tomorrow, that is the bitter truth," he added.
However, Wajir Senator Abass Mohamed interjected, saying they should be fair to counties because all the projects are initiatives of the national government.
"What is in court is RMLF and not CARA. We have to be honest as legal minds and don't take sides. If functions are devolved like that of museums, then money should follow. These are donor funds which have timelines," said Mr Mohamed.
Kitui Central MP Makali Mulwa blew hot and cold sitting on the fence on the issue supporting the Senate on some issues while also siding with his counterparts:
"I don't know how we will debate this Bill when RMLF is part of it yet it is subjudice. How do we proceed with such a quagmire? The fact that we have a court case is complicating our work as a mediation committee. Already the matter was in court before the mediation committee began its meetings. This makes it tricky. We need to resolve this first because counties also need these funds. We should take a break and consult more before we meet again because as it is now, we are just wasting time," said Mr Mulwa.
Busia Woman Representative Catherine Omanyo said they want to see what counties are doing with equitable share of revenue before they ask for more funds, adding that matters in court should not be touched until they are dispensed with.
"Let us not see this thing as either the National Assembly or Senate thing and approach it as one. Let the legal team advise on the issue of RMLF and if we can isolate it and wait for the court to make their decision and we proceed with other items. You can remove a matter that has a problem in the Bill, then continue," said Kitui Senator Enoch Wambua.
