Dinah Ondari @dinahondari
A proposed legislation seeking to set up a county attorney’s office to provide critical legal services to the devolved units has ran into headwinds, with the move pitting the Senate and National Assembly. In its absence, counties continue to grapple with poor quality legislation and soaring legal fees running into billions of shillings paid to private lawyers.
While one of the fundamental functions of County Assemblies is to come up with legislation to anchor operations, including development activities, the process of legislating the office of county attorney has stalled since 2015.
According to Senate Legal Affairs Committee chair Samson Cherargey (Nandi), the gap left by the absence of county attorneys exposes devolved units to litigation risks.
“One of the objects of this bill is to cushion County Assembles from legal pitfalls. Already, so many of them are facing petitions in court for legislating against the Constitution and violating fundamental freedoms,” he said.
Senate passed the bill in 2015 which was sponsored by the Busia Senator Amos Wako, but it lapsed at the end of the 11th Parliament tenure after long wait for debate at the National Assembly.
“We passed the bill in 2015, the National Assembly ignored it,” said Makueni Senator Mutula Kilonzo Junior. But a member of the National Assembly who sits in the Legal Affairs Committee said the bill would not see the light of day, saying MPs believe the proposed legislation was a money bill which according to the law, must originate from the National Assembly.
“By virtue of the fact that the bill seeks to increase the recurrent budget of counties by creating new offices of the attorney and county solicitor, this is a money bill and the Senate has no business originating such,” said the MP who sought anonymity.
But amid the stand-off, counties have gone out of their way to hire private lawyers for legal advice and even set up own versions of office of county attorneys in an attempt to fill the gap. However, the counties admit their efforts to procure legal services have left them grappling with substandard laws and huge bills in legal fees.
“This has been a challenge and counties have been forced to outsource these services which is costly. Legislation is a key component of government and it has to be done.
Some of the bills we have before the assembly have had to have input from other channels,” said Tharaka Nithi Governor Muthomi Njuki while responding to queries on how his county has been navigating challenges occasioned by the gap in legal services.
He said the proposed bill would go a long way in saving counties cash much needed for development projects. A senior official of in Kisii county whom we cannot name due to sensitivity of the matter admitted the bills passed during the first term of the Assembly “were un-implementable,” “The current Assembly has undertaken to significantly amend a good chunk of the 27 bills we have passed since the Assembly was initiated because it has become difficult to execute some of their provisions.
We have the office of an attorney whose rank is even below that of county chief executives. This compromises quality,” he said. In 2014, then Attorney General Githu Muigai called on Senate to speed up the process of legislating the bill and expressed concern over the quality of laws generated at the counties.
However, the Kenya Law Review Commission sought to dispel the notion that counties were passing substandard laws. “Those bills come to us before being published.
Therefore, the assertion that there is a lacuna is not correct,” KLRC chief executive officer Joash Dache told this writer. However, important to note is that after the publication ,the most critical stages of a proposed law are undertaken in within the County Assembly committee and plenary.
These processes include debate and consideration of amendments which require the input of legal experts. Some of the county bills have been the subject of court processes.
For instance in 2015 the court threw out the Kiambu county Finance Bill after declaring it illegal. Counties have also been on the spot for gobbling up millions of shilling in legal fees.
Leading the park has been Nairobi county which, for instance, spent Sh1.1 billion in legal fees according to the 2014-15 Auditor General Edward Ouko’s report. Recently Nairobi Governor Mike Sonko blacklisted lawyers and contractors who were pre-qualified during his predecessor Evans Kidero’s term.
And early last year, reports indicated that a prominent City lawyer stood to earn up to Sh1 billion in legal fees, thanks to the failure by the Nairobi County government and other State agencies to defend taxation cases in court. Apart from reaping from the taxation cases, the Judiciary Service Commissioner (JSC) had also obtained numerous court orders in his favour.
For instance, the court had already awarded City lawyer Prof Tom Ojienda Sh220 million after a High Court judge dismissed an application by the National Land Commission (NLC) to set aside a taxed bill of costs.
Of the six pending cases, three had been concluded while a similar number are still active, though at an advanced stage. Ojienda was also awarded Sh225 million after he successfully lodged a petition seeking orders to have City Hall compelled to pay him costs.