Governors fight Senate in court over ‘parallel grilling’ by committees

Milimani Law Courts

Milimani Law Courts in Nairobi.

Photo credit: File | Nation Media Group

The Council of Governors and the Senate are locked in a legal tussle over the latter’s decision to scrutinise how billions of shillings meant for roads was spent.

While governors claim double jeopardy, senators say they want transparency and accountability in the use of public resources.

The COG yesterday told a court that the Senate Roads and Transport Committee kept summoning governors over issues that the county bosses had addressed before the Public Accounts Committee (PAC), thus subjecting them to parallel grilling.

At the centre of the court battle is the spending of money from the World Bank for the Kenya Urban Support Programme (KUSP) in the past three fiscal years and equitable-share funds from the national government.

The spending of money from the Road Maintenance Levy Fund is also at issue. The money is allocated as conditional grants.

The Senate yesterday pushed back against the case filed by governors that seeks to bar the transport committee from questioning them over the use of conditional grants for infrastructure projects.

Through lawyer Mercy Thanji, the Senate said the petition and temporary order that have halted the questing of governors are intended to interfere with senators’ oversight role.

The temporary order also barred the transport committee from considering an audit report from the Road Maintenance Levy Fund.

But Ms Thanji said that although the money at the centre of the dispute is allocated to counties as conditional grants, it is part of national government revenue.

“The Road Maintenance Fund is one such conditional allocation. It is not correct that the Senate cannot look into expenditure of this fund,” Ms Thanji told Justice Anthony Mrima during the hearing of COG’s petition.

“Once (governors) receive funds, they must be ready to account for it at both the Senate and county assemblies. They want revenue but do not want to account.”

The case arose after the transport committee, chaired by Kiambu Senator Kimani Wamatangi, last month summoned five governors to answer questions about how conditional grants were used.

The committee also ordered the arrest of Bomet Governor Hillary Barchok for failing to appear.

“Oversight is not necessarily a fight. It could be a forum of engagement. Something could be wrong and can be corrected when thoroughly interrogated,” Ms Thanji said.

“The Senate has constitutional powers and privileges on how to implement its mandate. Nothing unconstitutional about governors being asked how funds allocated for county roads were used.”

But governors, through lawyer Peter Wanyama, denied that they are avoiding accountability.

He said the county bosses are only uncomfortable with multiple summons from various Senate committees on the same issue.

The court heard that the questions the committee intended to raise were addressed by governors when they appeared before the PAC.

“This case is not about accountability but compliance with procedures. Governors risk arrest and being taken to Wamatangi’s committee to answer questions answered before PAC. There is an overlap at the committees,” Mr Wanyama said.

He argued that governors are victims of the conflict on the mandate of different Senate committees and lack of a framework for oversight.

He added that county bosses are also subject to questioning by the County Public Accounts and Investment Committee over the same issues.

“Governors have no issues (about appearing) before any committee. But why should they appear at a smaller committee of roads and transport to answer issues answered at PAC?” he said.

He argued that since the Senate’s standing orders allow any member to appear at a sitting of any committee, Senator Wamatangi could have attended PAC meetings to raise the questions he intends to raise on the road levy.

“Public interest requires we follow procedures. Governors will be subject to double jeopardy and a parallel process of audit on account of the public expenditure,” Mr Wanyama.

Governors want the court to declare the parallel questioning unconstitutional.

The court will issue its ruling on Tuesday next week.