Monday, January 16, 2012



Updated 11 hr(s) 55 min(s) ago

But High Court judge Justice David Majanja was highly critical of Finance Minister Uhuru Kenyatta for breaching the Constitution through his selective application of its various articles.The Treasury has been spared further embarrassment after a judge dismissed a petition seeking to have it refund Sh368 billion to the Consolidated Fund, which is the Government’s main bank account.
The ruling also brings into focus Attorney General Prof Githu Muigai, who is the State’s chief legal advisor and the first respondent in the petition, with Uhuru listed as the second respondent.
Finance Minister Uhuru Kenyatta who was criticized by a High Court judge for failing to table an Appropriations Bill before withdrawing money from the Consolidated Fund [Photo: File/Standard]
Justice Majanja was explicit that Uhuru, who is also the Deputy Prime Minister, should have tabled an Appropriations Bill as required by Article 221 of the Constitution, before seeking Parliament’s consent to withdraw money from the Consolidated Fund to finance Government operations.
"Every failure to follow the letter of the Constitution harms the Constitution itself, breeds cynicism and encourages impunity particularly when such failure stems from a deliberate effort to undermine the Constitution," said Justice Majanja.
In contrast, he only had kind words for National Assembly Speaker Kenneth Marende.
Majanja said the Speaker displayed a healthy and welcome respect for the rule of law, and the principle of separation of powers, despite giving Uhuru a window to escape the wrath of Parliament on June 7 last year.
The last word
However, said Justice Majanja "the Judiciary has the last word in the event of dispute on the interpretation and application of the Constitution."
He noted: "... the Constitution has ushered in a new era, not of Parliamentary supremacy, but one of supremacy of the Constitution. The superintendents of the Constitution are the courts of law which recognise that each organ in its own sphere working in accordance with law not only strengthens the Constitution, but ensures that the aspirations of Kenyans are met."
The judge was clear that his decision to dismiss the petition was not a vindication of Uhuru’s actions, but said he was unable to grant the petitioners their wish, as this would endanger the process of implementing the Constitution given that six months had passed since the incident.
"Preparations should now be made to comply with the provisions of the Constitution in the next financial year," ruled Justice Majanja.
Justice Majanja said annulling Parliament’s decision of June 14 would have set in motion "a chain reaction whose effects would be grave and more harmful to the implementation of the Constitution."
He quoted Articles 3, 10(1) and 20(4) of the Constitution which he said emphasises that everyone, including State officials like Uhuru, have an obligation to respect, uphold and defend the Constitution
He defended Speaker Marende saying that he acknowledged that the law had been broken by the Finance minister, but gave proper guidance "as is required by any officer of State acting in accordance with the Constitution."
On Sunday, political and civil society leaders challenged President Kibaki and Prime Minister Raila Odinga to ensure the Constitution is not broken.
Those who spoke to The Standard said the ruling delivered three weeks ago, but which escaped media scrutiny, brings to the fore questions about the commitment of the Executive to uphold the rule of the law and respect for the Constitution Kenyans endorsed in August 2010, hoping to end a culture of impunity.
"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," said Majanja in the ruling delivered on December 23 two days before Christmas.
Defended treasury
The State defended the Treasury’s actions and sought a dismissal of the petition arguing it lacked merit, was frivolous and incompetent and that it was a transition period and no law was broken.
The State denied claims it violated the public’s right to participate in budget making process and the judge agreed. The next Budget cycle for the financial year 2012-2013 begins with a tabling by March 21 this year of the expenditure estimates for various ministries as well as the Parliamentary Service Commission and the Chief Registrar of the Judiciary under Standing Orders of Parliament.
Justice Majanja said that while the Appropriations Act as allows the Finance minister to seek Parliamentary approval to dip into the Consolidated Fund, he can only do so after tabling an Appropriations Bill, which Uhuru failed to do.
Two members of the civil society Jayne Mati of Mars Group and Dennis Adieno of the National Taxpayer’s Association moved to court to seeking orders to ensure the Executive complies with the Constitution.
Maragwa MP, Elias Mbau who chairs the Parliamentary Budget Committee agreed with the judge, saying that even though a mistake was made, it is not a licence for violation of the Constitution in future. Such mistakes, he said, were only tolerable because the country is transition.
"In this crucial and critical moment every institution is bending backwards a lit bit to accommodate others so as not to have the country crumble. But it is a warning to future ministers that the same leeway will not be granted in future," said Mbau.
Public scrutiny
The Executive Director of International Centre for Policy and Conflict, Mr Ndung’u Wainaina, dismissed the argument regarding the transition period, pointing out that it has been used by Government to evade public scrutiny.
"The argument about transition period doesn’t hold water. It is being used as an excuse to avoid public scrutiny, but the ruling is a statement to the Government that it must toe the line," said Wainaina.
The withdrawal of Sh368 billion from the Consolidated Fund represented one-half of the total net estimates of the Government’s recurrent and development expenditure.
Wainaina said MPs who legalised the appropriation of Sh368 billion championed their own interests and ignored the Constitution.
"They are doing everything in their own interest. These people have no regard for the law at all. They are used to shortcuts because they fear to be put under scrutiny," said Wainaina.
In his earlier memo to the Budget Committee in June, Mars Group Chairman Malibu Mati said the move was unconstitutional and asked it to intervene.
Nominated MP and Chairman of the Parliamentary Committee on Equal Opportunities, Mr Mohammed Affey hailed the court’s ruling pointing out that the culture of impunity must stop.
"No money should be used without following the law. It was wrong to allow this. The law is the law and it must be followed. I support the ruling," said Affey.
Another member of the Budget Committee, Subukia MP, Mr Nelson Gaichuhie, said the ruling reflected the reality given that Kenya is still transiting from the old order, but pointed out that it should not be allowed in future.
"Until we form the next Government, we are still in some form of mishap. We have to transform gradually even if we are to follow the law. The good thing is that the future will have a clear cut line of doing things," said Gaichuhie. click here to read the high court ruling