1976 I watched the then Governor Jimmy Carter and
President Gerald Ford of US debate domestic policy issues and I have never
forgotten the words of the late President Ford.
He said in reply to a question by the moderator of the
debate that “A president cannot be everything to everybody but has to be the
same thing to everybody!” That was not only profound but it clearly manifested
itself when in November 1980, the then Governor Ronald Reagan, resoundingly
defeated President Jimmy Carter with the largest Electoral College defeat of a
seating President. Carter, when he became President, made efforts to be
everything to everybody. He however remade himself after he left office. What
then is the lesson to Kenyans when we look at the current going-ons in the clamor
by our political class, especially legislators, who want to directly manage
public funds and hence boost their popularity with electorates!
The Constitution in Articles 202, 203 and 204 on Equitable
sharing of National Revenue, Equitable share and other Financial Laws and Equalization
Funds respectively provides for the National and County Governments in
discharge of public service. In addition, under Devotion and Access to service,
the drafters of our Constitution intended that matters to do with expenditure and
development are functions to be exercised by both the National and County
Governments in accordance with the distribution of functions between the
National and the County Governments.
What is then the issue? There has been unprecedented demand
for allocation of resources to Constituency Development Fund, where the Court
has already pronounced itself on the illegality of the fund, 47 Women
Representatives Members of National Assembly (WRMNA) Fund in excess of the
KShs.2 Billion, and a KShs.2.5 Billion fund for MCA while the debate on whether
the Senators will be allocated development fund of over KShs.2 Billion is still
ranging.
What is informing this growing disregard for the doctrine
of separation of powers? Do we really understand or even appreciate that there
is a big difference between the executive branches of governments, represented
by the National and County Governments on one hand and the other Parliament and
County Assemblies as the Legislative and oversight bodies? This was the essence
of our new Constitution when Kenyans determined the responsibilities and
functions between the two distinct branches of Government with the Judiciary
playing the role of an independent arbiter in case of either interpretation of
the Constitution or in resolving disputes!
More importantly the Constitution mandates the Auditor
General to audit expenditure of public resources in an accountable and
transparent manner. This is crucial because two key Committees of Parliament are
Public Accounts and Public Investment Committees, and their reports are
informed by the findings of the Auditor General. This is against the background
of Auditor General’s role in highlighting any acts of either omission or
commission in the expenditure of public resources through use misuse or
mismanagement.
The current scenarios where legislative bodies are
being allocated funds is contrary to the intention and Spirit of the
Constitution. Kenyans must together voice their objection to these violations
whose eventual implications is likely to be very detrimental to the accountability
principle. Under the circumstances, there is no way MNAs, WRMNA, MCA and even Senators
will offer oversight against themselves when findings of the Auditor General
indict them. The Kenyan tax payer will therefore be left without a watchdog
over their money. As the Baganda proverb states “Monkeys must not be allowed to
determine who lives in the forest. Why, they are interested parties with territorial
ambitions.” Equally MNA, WRMNA, MCA and Senators are interested parties with serious
conflicts of interest.
Taken to its logical conclusion, our Legislators
cannot therefore be expected to hold themselves accountable for their mistakes
especially with respect to the misuse and abuse of public funds they are directly
involved in managing and or supervising expenditure by people they have either appointed
or helped elected to the development committees.
We are opening the floodgates of unstopped and
insatiable corruption which ultimately will consume this Nation. That is why we
state to you, Mr and Mrs Kenya’s elected leaders, we cannot afford this level
of compromise and contradiction in the management of Nation’s affairs. Only the
President and Governors have the constitutional mandate to spend public
resources for public good. Your duty is to legislate and overnight these governments.
The maximum expectation from Kenyans is for legislators to be proactive in
lobbying the National and County leaders for resource allocation on specific projects
implementations which are mainstreamed in the approved budgetary provision. This
is a global phenomenon and Kenya is no exception.
Kenyans must insist that leaders go back to the basic
legislative roles and faithfully adhere otherwise we risk disruption to orderliness
of governance due to lack of accountability and transparency in the affairs of
public expenditure. Meantime, I urge greater participation and enlightenment of
the citizens in applying the opportunities like the enforcement of Bill of
Rights and the Constitution in guaranteeing the constitutional probity and
order. If we defocus our attention and fail to be vigilant, parliamentarians
and members of County Assemblies will play the Russian roulette on Kenyan
lives, which is potentially a dangerous undertaking likely to bequeath financial
burdens to both the present and future generations and collectively affect our
common destiny.
Karanja KABAGE
ADVOCATE,
HIGH COURT OF KENYA
July
07, 2015
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