BY SAM ALFAN.
Senators have asked the High Court to dismiss a petition seeking to block them from summoning governors over reports on roads maintenance levy fund and World Bank funded Kenya Urban Support programme.
In reply to a case filed by the Council of Governors, the Senate told the court that Governors have failed to appear before the Roads and Transportation Committee despite invitations.
The court heard that the governors have also failed to honour lawful summons issued by the Senate and they were, therefore, in contempt of lawful orders. COG rushed to court to block senators from summoning them to discuss the Auditor General’s reports on the Roads Maintenance Levy Fund and the project funded by the World Bank.
Through Lawyer Wangechi Thanji, the Senate said governors have demonstrated open contempt for the House and its constitutional mandate to oversight national revenue allocated to the county governments.
“The members of the petitioner have failed to appear before the Roads and Transportation Committee despite invitations being extended to them and also failed to honour lawful summons issued by the Senate and are therefore in contempt of lawful orders,” he said.
The senate opposed orders issued saying they will not be rendered nugatory.
“The respondent submits that the substantive petition will not be rendered nugatory if this court declines to grant the conservatory orders sought and the Petitioners herein have not established exceptional circumstances to warrant this Honourable Court to restrain the Senate from carrying out its constitutional functions at this stage,” Senate added.
The court heard that the Senate is aggrieved by the order blocking the summons as they have the effect of crippling its functions under Articles 94, 96, 220 and Chapter 12 of the Constitution. The Senate said it was in public interest that it is allowed to perform its constitutional mandate.
“Under section 7 (d) of the Public Financial Management Act (PFMA), Parliament has the mandate to monitor adherence by the three arms of government to the principles of public finance through the relevant committee, in this case the Roads and Transportation Committee created under Standing Order 218,” the Senate said.
The court was also told that the order was obtained through non-disclosure of material facts, material misrepresentation of facts and in violation of the Constitution.
The Senate asked the court to set aside the order for failing to meet the legal and constitutional threshold.
“Further, the ex parte orders have halted the operations of the Senate and the Senate is therefore unable to discharge its mandate to protect the counties and carry out oversight over the county governments,” the Senate said in reply.
The orders have also halted the Senate from considering the Report of the Auditor General on the Road Maintenance Levy Fund despite the constitutional time limits set under Article 229(8) of the Constitution to debate and consider the Reports of the Auditor General.
“It is not in the public interest to grant conservatory orders that restrain Parliament from carrying out oversight of public funds and its consideration of the state of implementation of projects funded by public funds,” the senate added.
Justice Hedwig Ong’udi blocked the Senate’s bid to summon governors after COG told the court that the conduct of the senate in issuing the summons was unreasonable, malicious and meant to undermine the administration of justice and subvert the constitutional order on oversight.
“Principally, the senate is bound by provisions of Article 6(2) and Article 189 of the constitution which provides that the government at each level shall perform their functions and exercise their powers in a manner that respects the functional and institutional integrity of other government levels,” COG argued.
The council added that the senate’s oversight role over nationally collected revenue to counties is certainly not identical to county assembly’s oversight and this means senate cannot scrutinize county expenditures in the same way that the committee and general assemblies of the county legislatures can.
