We shall defend devolution, CJ pledges

Chief Justice Martha Koome

Chief Justice Martha Koome. 

Photo credit: File | Nation Media Group

The Judiciary will continue its role as one of the foremost defenders of devolution, Chief Justice Martha Koome said yesterday.

Speaking during the senators’ induction training in Naivasha, the CJ cited instances when devolution has been threatened, and the courts, specifically the Supreme Court, have stepped in to defend the spirit of decentralisation.

She cited two landmark decisions – the Council of Governors and 47 others versus the Attorney General and three others (Interested Parties); Katiba Institute & 2 others (Amicus Curiae), on May 15, 2020.

The CJ, who addressed the meeting virtually, said the Supreme Court rendered an advisory opinion on how the recurrent failure between the Senate and the National Assembly to agree on a Division of Revenue Bill would be resolved.

“The court directed that funds equivalent to 50 per cent of the previous year’s allocation be disbursed to the counties whenever the legislative chambers have not agreed on the division of revenue between the two levels of government despite the commencement of a new financial year,” said Ms Koome.

Division of Revenue Bill

The stalemate, she stressed, had often led to delayed disbursement of funds to the county governments.

In 2013, the CJ told participants, the Supreme Court opined in an advisory opinion that the Senate has a clear role to play in the processing of the Division of Revenue Bill.

“This was in the face of assertions by the National Assembly that the Senate should not be involved in the processing of the Division of Revenue Bill, which is the legislative instrument for budgetary allocation between the national and the county governments,” she added.

She spoke of the role of courts, which involves building and developing the foundational principles of an emerging constitutional order that has inspired democracies like Kenya.

Judiciaries, she noted, had the potential to build a culture of constitutionalism, and at the same time play their protective role by focusing on the existing structures of constitutional governance, calling on courts to be conscious about crafting principles of constitutionalism and rights protection.

Referring to other matters arbitrated in the corridors of justice, Ms Koome took note of an advisory opinion rendered on March 9, 2018 on what ought to happen when the office of a deputy governor falls vacant in the absence of a legislative framework on filling the vacancy.

“The Supreme Court adopted the approach that the ‘law is always speaking’ and advised that where a vacancy occurs in the office of the deputy county governor, the governor shall within 14 days, nominate a person to fill such vacancy,” pointed out the CJ.

Election of a new governor

She said the county assembly shall vote on the nomination within 60 days after receiving it; and whereas the vacancy occurs in both the offices of county governor and deputy county governor at the same time, the office of the deputy county governor shall remain vacant until the election of a new governor.

Ms Koome told the senators that the Judiciary, more so the Supreme Court, had developed rich indigenous jurisprudence that has protected the spirit of devolution and also enabled institutions established under the devolved system of government to function.

The senators are meeting for five days at the Sawela Lodges in Naivasha, where they are being trained in the mandate of the Parliamentary Service Commission, the Senate’s role in advancing inter-governmental relations, and other issues relating to devolution.


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