BY SAM ALFAN.
The Treasury Cabinet Secretary Ukur Yatani has been sued for purporting to arbitrarily revoke The Public Finance Management (Strategic Food Reserve Trust Fund) Regulations, 2015.
Human activist Okiya Omtatah moved to court to seeking suspension of the public Finance Management (Strategic Food Reserve Trust Fund) Regulations of 2020.
In his papers Omtatah wants the court to issue a temporary injunction prohibiting Treasury and Agriculture Cabinet Secretaries and their agents, any persons howsoever acting from giving effect in any way whatsoever to The Public Finance Management (Strategic Food Reserve Trust Fund) (Revocation) Regulations, 2020 (Legal Notice No. 61 of 14th April 2020) pending hearing and determination of the case.
Omtatah faults Legal Notice No. 61 of April 14, 2020 for being arbitrary, unfair, un-procedural, unreasonable, unlawful and, therefore, unconstitutional, because, among others:
He argue that there is absolutely no public interest to be served by abolishing the fund which is well managed and was executing its mandate perfectly, including by resisting the importation and dumping of cheap maize on the local market to the detriment of local farmers.
The activists adds that the legal notice was established in contravention of the procedure laid out in both the Constitution and in the Statutory Instruments Act, 2013 for enacting subsidiary legislation, including the requirement for public participation.
“The legal notice has no transition mechanisms to secure the Fund’s assets, including the Sh10 billion which is held in the Fund’s accounts and there is no other public body which can discharge the functions of the Fund,” reads the court papers.
He further state that the legal notice violated the right to fair administrative action under the Constitution as read together with the Fair Administrative Action Act, 2015 and it was impossible to revoke LN. No. 145 of 2015, since that legal notice was already revoked vide paragraph 3 of Legal Notice No. 164 of August 18, 2015 – the Finance Management (Strategic Food Reserve Trust Fund) (Amendment) (No. 2) Regulations, 2015.
Omtatah suspects that the reason for the purported revocation of the Fund is simply to allow the Treasury unhindered access to the Sh 10 billion held by the Fund.
“With the Fund’s Oversight Board in place, the treasury cannot spend even a cent of the money without the authorization of the Board. And with the impending importation of maize, which the Board has been resisting, arging that local farmers be given the priority in the name of partriotism (Article 10 of the Constitution) there is a clear motive for disbanding the Fund so as to aid and abet the improper motives and corrupt practices of the cartels in the sector,” says the activist.
The Public Finance Management (Strategic Food Reserve Trust Fund) Regulations, 2015 established the Strategic Food Reserve Trust Fund. The object and purpose for which the Fund was established was to provide a Strategic Food Reserve in physical stock and cash equivalent.
The “Strategic Food Reserve” includes maize, beans, rice, fish, powdered milk and canned beef. Currently, no other organ has the mandate to discharges the functions of the Board.
“Specifically, the Fund’s mandate is to: (a) stabilize the food supply and prices in the country; (b) arrange for procurement, storage and sale of food commodities; (c) maintain adequate strategic food reserves in physical stock or cash equivalent at any one given time; and (d) mobilize resources to support strategic food reserve related activities”, adds Omtatah.
According to Omtatah, the initial capital of the Fund was two billion and two hundred million shillings appropriated by Parliament in the financial year 2014/2015. Additional capital of the fund was made in the subsequent financial years’ budgets and Fund also solicits for and receives funds and other assistance to promote the object for which the Fund was established.
Currently, the Fund has some Sh 10 billion in liquid cash in its bank accounts.
Vide legal notice No. 61 of April 14, 2020 (The Public Finance Management (Strategic Food Reserve Trust Fund) (Revocation) Regulations, 2020) the Treasury CS purported to revoke the following statutory instruments, LN. No. 15 of 2015 (The Public Finance Management (Strategic Food Reserve Trust Fund) Regulations, 2015) and LN. No. 145 of 2015 (The Finance Management (Strategic Food Reserve Trust Fund) (Amendment) Regulations, 2015).
