Nairobi assembly speaker Beatrice Elachi wants the Solicitor General to shed light on the transferred county functions.
This comes after Solicitor General Kennedy Ogeto termed the Gazette notice for the Nairobi County Supplementary Appropriation Act, 2020, unlawful and wants it revoked.
In an advisory issued on May 6, Ogeto directed the Government Printer to institute the revocation. According to the advisory, Governor Mike Sonko’s memorandum takes precedence.
Speaker Elachi explained that the solicitor general is in agreement with the governor’s memorandum, which stated that the assembly had allocated money to some functions that were never transferred to the NMS.
On April 30, 2020, Governor Sonko wrote to the solicitor general to direct the Government Printer to nullify the Act through a corrigendum. Sonko argued that the Bill was published in contravention of the law, hence does not have the force of law.
Acknowledging the advisory, speaker Elachi on Friday said the solicitor general guided properly and the assembly accepted it. She noted that the assembly had also asked for guidance on the Supplementary Budget and transfer of functions.
“The transfer of functions is a new thing and as an assembly, we didn’t know how to deal with it. The assembly had also said the governor can go to court and seek legal advice and since the Solicitor General is the advisor of the government and that’s what he has advised so be it,” Elachi said.
The Supplementary Appropriation Bill, 2020, was passed by the assembly on April 2, 2020. It allocated the Nairobi Metropolitan Service Sh15 billion following the transfer of four county functions.
On February 17, 2020, Sonko surrendered Health, Transport, Public Works, Utilities and Ancillary, Planning and Development Services to the state.
Ancillary services are inclusive of the human resource, security and enforcement, accounting and finance, and legal services.
“He [Ogeto] should now come and tell us which functions these were because we also do not know them after this advisory,” Elachi said.
“But it is also good to understand that the money has already been appropriated and it cannot come back since the functions are gone.”
In his memorandum, Sonko explained that he refused to assent to the Supplementary Appropriation Bill because some of the proposed allocations were for functions never transferred.
He accused the county assembly of amending the Bill “that gave rise to these irregular transfers and allocations” without the input of the Finance executive.
As highlighted in Article 187 of the Constitution, resources must follow the transferred functions. Hence, to avoid a further clash over county funds, Elachi has further requested Ogeto to offer guidance on the main budget — how the money will be allocated to transferred functions.
She noted that the advisory could be vital as already the assembly has started the budget process.
NO BAD BLOOD
Putting things into perspective, speaker Elachi made it clear that the issue on the Supplementary Bill is not, and never was, a political battle as portrayed.
She said she never rejected the governor’s memorandum but only gave guidance.
“I’m not at war with the governor. The assembly had to do its mandate as we are living in different times with the coronavirus. Funds towards this pandemic could not be released without having been appropriated,” Elachi stated.
Elachi further noted that with regard to the Emergency Fund, Section 113 of the PFM Act, 2012, does not give a limit on the amounts that can be set aside by the assembly for emergencies.
Her ruling was informed by Standing Orders 146(4) that gives her the latitude to rule on the memorandum without subjecting it to the relevant committee of the House for voting as it raised constitutional matters that can only be determined by a court.
She returned the original bill to the governor, excluding his memorandum. However, according to the solicitor general, county assembly Standing Orders cannot be used to sidestep mandatory requirements of an Act of Parliament.