By Paul Muhoho
Chief Justice David Maraga on Friday advised the Executive and the two Houses of Parliament to negotiate and reconcile the controversial Division of Revenue Bill in national interest.
The head of the Judiciary said government institutions should work harmoniously and only seek redress from courts after exhausting dialogue.
Maraga, who was giving directions in a petition filed by the Council of Governors (CoG) and 47 county governments challenging the budgetary process, said State agencies needed to consult at the highest level for public good.
The Speaker of the National Assembly Justin Muturi, formally lodged a preliminary objection seeking dismissal of the advisory opinion reference on the basis that the Supreme Court lacked the power to entertain the petition.
“The petitioners challenge the manner in which Parliament has been conducting the budget process pertaining to the mode of division of revenue between the national and county governments with an emphasis on conditional grants,” the objection filed by lawyer S M Mwendwa and Barrack Awadh stated.
The lawyers claimed the apex court could not issue a declaration against the National Assembly, the National Treasury and the Controller of Budget that all grants should be disbursed to counties through the County Revenue Fund.
“Article 189 (3) of the Constitution and Section 31 of the Inter-Governmental Relations Act requires county governments and the National government to make every reasonable effort to settle disputes between them before resorting to judicial proceedings. The applicants have not demonstrated that they have exhausted the measures set out under the provisions,” the lawyers said.
Senior State Attorney Emmanuel Bitta said the Attorney General will oppose the participation of the Council of Governors and some interested parties in the proceedings. The 22 contentious questions they had raised in the petition were already the subject of a constitutional application pending adjudication in the High Court, he said.
Bitta said High Court Judge Weldon Korir was seized of the constitutional application since July 15 and it was set for hearing on July 29. The Chief Justice is expected to appoint a Bench to handle the case.
Veretan lawyer Fred Ngatia, assisted by Issa Mansour and Peter Wanyama, said they had filed their submissions and authorities in support of the petition. They asked for an early hearing date.
Senior counsel Nzamba Kitonga, assisted by Steve Ogolla, for the Law Society of Kenya (LSK), said they had not been served with the court documents and required until next week to respond. Lawyer Kamotho Waiganjo, for the Commission on Revenue Allocation, said they were ready for the hearing.
Lawyers Soyinka Lempaa, Christine Nkonge and Ochieng Dudley, for Katiba Institute, said they required the court documents to prepare for the hearing. Lawyer Wangechi Thanji, for the Speaker of the Senate, Ken Lusaka, pleaded to be served with the documents.
Justice Maraga said all the parties must file and serve their paperwork by Monday evening. The matter will be mentioned before the full Bench on Tuesday.
“Be ready to be heard even the following day. Please, arrange your diaries accordingly,” he said.