Governors vow to push BBI changes court declared unconstitutional

Governors have vowed to explore alternative avenues to ensure progressive change in the Constitution of Kenya (Amendment) Bill 2020 that was declared unconstitutional by the Court of Appeal is implemented in a bid to 'strengthen devolution'.

The county bosses on Monday said they would work with other stakeholders, including the Legal Affair committees of Parliament, to ensure that clauses that do not require a referendum are passed before the next General Elections. 

Speaking in Nairobi after an extra ordinary meeting to chart a way forward following Friday's Court of Appeal judgment, the Council of Governors’ Legal and Constitutional Affairs committee said it still supports the spirit of BBI.

It said the initiative by President Uhuru Kenyatta and ODM leader Raila Odinga would help end divisive elections that result in electoral violence, ethnic antagonism and competition, and boost the fight against corruption. 

“We also hope to see inclusivity among the people of Kenya, increased resources to the counties that will spur growth to the rural economy where the largest population is,” said Meru Governor Kiraitu Murungi, the committee chairman.

“It was envisaged that through these amendments, county governments would have an increase in their equitable share from the current 16.9 percent to not less than 35 percent of the total revenue collected. This will enable the County Governments to empower informal small scale traders, women, youth, persons with disabilities and the economically disadvantaged.”

He said the council does not agree with the appellate judges who upheld High Court judgment stopping BBI.

“The council is of the position that the judgment made on Friday 20th August 2021 did not consider the substantive issues contained in the constitutional amendment bill,” the governors said.

“The court's decision largely focused on the procedural aspects of a constitutional amendment process.”

Mr Murungi was flanked by Governors Francis Kimemia (Nyandarua), Amason Kingi (Kilifi) and Mwangi Wa Iria (Murang’a).

Some of the clauses which they noted were passed by both Houses of Parliament include Article 202 on equitable share of national revenue which they said will ensure counties are adequately resourced. 

“Revenue sharing will be based on the most recent audited accounts of revenue submitted by the Auditor-General in the event the National Assembly has not approved the audited accounts.”

Mr Murungi said this provision increases the percentage of funds allocated to county governments from at least 15 per cent to 35 per cent.

Others are Article 204 on Equalization Fund that seeks to increase the life span of the Fund from 20 to 30 years from the effective date as well as Article 207 which sets up kitties for county governments. 

The amendment of Article 207 seeks to establish a county assembly fund.

“Article 215 on the composition of the Commission on Revenue Allocation that seeks to reduce the number of members nominated by political parties represented in the Senate from five to two so as to balance the representation from the two Houses. 

The amendment also provides for two members to represent county governments.

The governors are also targeting Article 206 on Constituencies Development Fund, 207A, which requires that the Ward Development Fund shall comprise of at least five per cent of all the county government's revenue in each financial year and ensures equitable distribution and development in wards.

Others are amendments to the Higher Education Loans Board Act to create a four-year loan repayment moratorium for university students, as well as amendment to the Micro and Small Enterprises Act, 2012 which proposes to give enterprises a seven-year tax break.

“This is the moment to test the political will and genuineness to the political class especially those that were supporting the BBI to support the COG sponsored Bill,” added Mr Murungi. 

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