A simple but landmark court ruling in October 2024 has fuelled a fierce fight between governors and senators over appearances before the Senate to answer audit queries regarding the use of public funds in counties.
The ruling by High Court Judge Justice Jairus Ngaah, which barred Parliament and County Assemblies from considering any audit reports three months after receiving them from the Auditor-General, is threatening to further strain the fractured relationship between county bosses and senators.
Justice Jairus Ngaah. FILE | NATION
Since the ruling, governors and senators have been embroiled in a bitter war of words over the former’s appearance before the Senate. The judgement stalled activities of Senate watchdog committees tasked with scrutinising audit reports for county executives and assemblies.
Besides the Executive and Assembly reports for the 47 devolved units, the two watchdog committees also consider audit reports for various funds, hospitals, and investments by the counties.
This is partly due to some governors failing to appear before the committees, thereby waiving the ruling in front of the senators. Kisii Governor Simba Arati, at one time, when he appeared before the Senate County Public Accounts Committee (CPAC), produced the court order and went on to accuse the panel of contempt of court.
Kisii Governor Simba Arati.
Photo credit: Lucy Wanjiru | Nation Media Group
Nairobi, Kiambu, Isiolo, Mombasa, Embu, Kericho, and Kisumu governors have since played a cat-and-mouse game with the committee, citing prior appointments on the very days they are to appear before the two watchdog committees.
However, long-serving CPAC chairperson Senator Moses Kajwang’ accused the governors of using the court order to shield themselves from accountability. He said it is practically impossible for Parliament to consider all the reports within three months as directed by the court.
In a move to tame the “rogue” county bosses, senators are planning to pass a motion to have funds to counties led by such governors withheld. Further, legislators are pressing for the prosecution of governors who fail to appear before a watchdog committee over audit queries concerning their counties.
Isiolo Governor Abdi Guyo has been at loggerheads with the Senate for failing to honour more than seven invitations or summonses by several Senate committees. Governor Johnson Sakaja and his Kiambu counterpart Kimani Wamatangi, have also been adversely cited for contempt of the Senate.
In the last week of November, Governor Guyo and his Kericho counterpart, Erick Mutai, once again snubbed the CPAC, citing “prior engagements.” To curb the growing trend, Kisii Senator Richard Onyonka said he will move a motion to have the Controller of Budget directed not to release funds to such governors to enforce appearances before the Senate.
Chairperson Senate County Public Accounts Committee Senator Moses Kajwang' during a session at the Bunge Tower, Nairobi.
Photo credit: Dennis Onsongo | Nation Media Group
“We have to stop money going to county governments led by these rogue governors until they appear before the Senate. We must have stiffer consequences other than just fining them or seeking their arrests,” said Nairobi Senator Edwin Sifuna.
He said Mr Sakaja is a notorious offender who appears before the Senate only when he wants and has several summonses hanging over his head. The Senate deputy minority whip said Nairobi is an exceptional case, with the governor having snubbed summonses to appear before the Transportation and Housing Committee six times over the urban renewal programme, and has also been summoned by the Energy Committee over the Embakasi gas explosion, but skipped it to attend a funeral.
Senator Kajwang’ said they will invoke Article 225(3) of the Constitution, which authorises the minister responsible for finance to stop the transfer of funds to a State organ or any other public entity if there is serious material breach or persistent material breaches in the use of public funds for at least 60 days.
He pointed out that Nairobi County has had four consecutive adverse opinions from the Auditor-General, including the financial year ending June 2023, hence in breach of the law. Mr Kajwang’ added that Section 97(1) of the Public Finance Management Act, 2012, states that where the Treasury CS decides to stop the transfer of funds to a State organ or public entity in accordance with Article 225(3) of the Constitution, the minister shall stop the payment and inform the Controller of Budget of the date from when the stoppage of funds takes effect.
The CS will also inform the CoB of the nature of serious or persistent material breaches committed by the State organ or public entity. However, the minister may not stop the transfer of more than 50 percent of funds due to a county government.
“Parliament cannot be made to appear weak or helpless to the extent of turning into a House of lamentation. Let us stop money from going to these counties whose governors have consistently shown contempt for the Senate,” said Mr Kajwang’.
Kitui Senator Enoch Wambua said they should consider moving a motion before the House to pass a resolution requiring the IG to arrest and produce such errant governors. He said Governor Guyo has shown contempt of the first degree, not against the committees, but the Senate at large.
“This will serve as an example to other governors who are also wayward, who have no respect and do not honour summonses and invitations by Committees of the Senate,” said Mr Wambua.
Migori Senator Eddy Oketch.
Photo credit: File | Nation Media Group
Migori Senator Eddy Oketch said committees should recommend, in the form of a report before the House, prosecution of such county bosses, as snubbing committees is nothing but the “best definition of a crime.”
“Let us ratify those reports through the process of debate and consideration in this House and forward the recommendations to the Directorate of Public Prosecutions and recommend prosecution,” said Mr Oketch.
Senator Kajwang’ told governors that Senate committees’ business is not vendetta but a Constitutional requirement to oversee public resources assigned to county governments.
Article 125 of the Constitution provides that either House of Parliament, or any of its committees, has the power to summon any person to appear before it for the purpose of giving evidence or providing information.
To give effect to the above powers, Section 18(1) of the Parliamentary Powers and Privileges Act provides that Parliament and its committees shall have the same powers as the High Court, with sub-section 3 adding that Parliament or its committee may order the arrest of a person who fails to honour a summons.
“Let us use this police station, which is domiciled in Parliament. The only way you can protect devolution is by making sure that you call these people to account. I want to request the Inspector-General of Police to expeditiously go and make sure that the governor is taken to jail,” said Narok Senator Ledama Olekina.
Kericho Senator Aaron Cheruiyot said the committees snubbed by Governor Guyo should draft summonses and ask the IG to produce that governor and ensure that he is in safe custody until the next sitting of that committee.
