Outrage over Githae Sh400bn 'ambush'

Finance minister Njeru Githae has “ambushed” Parliament with a request to withdraw Sh424 billion from the Consolidated Fund to run the government raising a furore.

The minister said the withdrawal is a stop-gap measure to access half the budget money pending parliamentary approval of a law that will legalise the withdrawal.

The minister wrote to Parliament at lunchtime Wednesday and walked to the House an hour later to present his request in a move that raised a huge uproar from the Budget Committee. The members of the House team hurriedly convened a news conference at Parliament buildings and accused the minister of flouting the Constitution and the law.

The chairman of the Budget Committee Elias Mbau, led MPs John Mbadi (Gwassi), Shakeel Shabbir (Kisumu Town East), Moses Lessonet (Eldama Ravine), in accusing the minister of being held hostage to a cabal of “mandarins who had not yet conformed to the provisions of the new Constitution”.

“This is what you call an ambush. This does not demonstrate goodwill. We all knew the minister was new in that ministry, but what he’s trying to do is to occasion a crisis,” said Mr Mbau.

If the push and pull continues, and the MPs stand their ground, they could shut down the government beginning July 1 when the next financial year begins. Or the Treasury could be forced to illegally access the Consolidated Fund and spend money without parliamentary approval.

Blackmail

The MPs of the committee are also said that Mr Githae has refused to accede to the resolutions of the House to cut domestic and foreign travel expenses in all ministries. They said that the technocrats at the Treasury were trying to blackmail them to breach the law, yet Parliament had already approved the cuts.

“You see the minister is trying to tell us that this will affect the mileage claims payable to MPs and that the cuts to capital grants will affect the allocation to the Constituency Development Fund. This is the height of impunity. The minister is trying to personalise this matter and intimidate MPs,” said Mr Mbadi.

To the MPs, the minister was trying to pull an illegality that his predecessor at the Treasury, Deputy Prime Minister Uhuru Kenyatta, did last year, and which the courts ruled as unconstitutional. The MPs insisted that the minister had to bring an Appropriations Bill, taking into account the report of the Budget Committee as adopted by Parliament.

“The minister has no choice but to yield what Parliament approved and include the changes in the Appropriations Bill,” said Mr Mbadi.

The approval of the Sh424 billion will have be debated Thursday because the House is scheduled to go on recess later in the day, and that’s why the minister was in a hurry to ensure the money is released before they take their break. There are just five parliamentary days left to the end of the financial year.

“If we give the Treasury this leeway, it will set a very bad precedent. This is something that they have practiced over a long time and it is those lords of impunity that are stuck in the Treasury who are blinding the minister from the facts of the law,” said Mr Shabbir.

Consolidated Fund

The MPs quoted a court ruling delivered by Justice David Majanja which directed that for any money to be withdrawn from the Consolidated Fund, through the Vote on Account --access of not more than half the budget money prior to parliamentary approval -- there has to be an Appropriations Act or an Appropriations Bill awaiting presidential assent.

They said that the explanation that the Treasury was unwilling to approve the budget cuts because the MPs’ proposals could “adversely affect the ability of government  in delivering some critical services”.

“We feel very disturbed that the ministers can even imagine that MPs are not alive to the provision of the Constitution,” said Mr Mbau, the chairman of the Budget Committee.

The MPs then went into the House and alerted the Deputy Speaker Farah Maalim of the anomaly. The Deputy Speaker said the matter will be addressed Thursday.

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High Court ruling on Budget process

“Article 222 contemplates the existence of an Appropriation Bill hence the reference to the words in Article 221(1) “If the Appropriation Act for the financial year has not been assented to, or is not likely to be assented to ...” These words import the existence of a bill that is within the legislative process or a bill which has been passed but is awaiting Presidential assent.

A “Vote on account” or “Motion” does not comply with the provisions of Article 222 of the Constitution. The process set out in Article 221 and 222 is not intended to give the budget and appropriation process a perfunctory legislative seal of approval but to promote the values of the Constitution I have already alluded to.

I therefore hold that for there to be compliance with Article 222, there must be an Appropriation Act or Bill in place and it was in breach of the Constitution to proceed to withdraw money from the Consolidated Fund without the existence of an Appropriation Act or Bill.

Every failure to follow the letter of the Constitution harms the Constitution itself, breeds cynicism and encourages impunity particularly where such failure stems from a deliberate effort to undermine the Constitution”- Justice Majanja