The National Assembly will not break from its month-long holiday to address the stalemate over the Division of Revenue Bill, 2019 despite a plea by President Uhuru Kenyatta and a legal advisory from Attorney-General Kariuki Kihara for them to do so.
While maintaining the hardline position on Saturday, National Assembly Speaker Justin Muturi said he sees no reason for MPs to give priority to solving the standoff between governors and the National Treasury over the allocation of funds to counties since it is not a problem of MPs' making.
"MPs do not have money to allocate to anyone," said Mr Muturi. "They just pass what the National Treasury advises them to do. If counties want more money, then they should take it up with the Executive and the National Treasury."
His comments came as the President pleaded with the National Assembly to end the nearly three-month-long impasse and pass the bill so that counties can access money.
An advisory opinion by Mr Kihara on the possibility of the National Treasury administratively advancing funds to county governments to enable them deliver essential services as the stalemate continues, concluded that such an action can only be sanctioned by Parliament.
"In our considered opinion ... there can be no legal basis under our current legal architecture upon which the National Treasury can administratively advance funds to the county governments," wrote the AG on Thursday to Senate clerk Julius Nyegenye.
Mr Kihara advised Parliament to enact appropriate legal framework to facilitate the requisite withdrawals from the Consolidated Fund in favour of county governments.
"Parliament holds the constitutional power of the national purse," said Mr Kariuki. "Under the constitution, there can be no expenditure from the Consolidated Fund without the authorisation of Parliament."
He urged that Parliament be reconvened to discuss the matter. "While we note that both Houses are on recess, we are of the respectful view that the subject matter herein is of such fundamental public importance that justifies the recalling of Parliament for urgent action in the manner proposed and explained above," he wrote.
Mr Muturi, while terming the AG's advisory opinion as being "careful", said this was not necessary.
"Everyone knows, including the AG, that our role in this matter as the National Assembly is very limited," he said. Both Houses resume sittings on September 9, said the speaker.
On Wednesday, President Kenyatta called on the National Assembly and the Senate to end the stalemate.
Whereas the National Assembly has proposed that counties get Sh316 billion, the Senate wants them allocated Sh327 billion.
There has to be concurrence between the National Assembly and the Senate for the bill to be passed into law.
However, President Kenyatta insists that there is no cent above the already allocated funds to be added to counties.
Governors have moved to the Supreme Court to challenge the division of sharable revenue, and last week Chief Justice David Maraga directed that a mediation committee comprising members of the Senate, National Assembly and Treasury be formed to deliberate on the matter.
National Assembly Majority Leader Adan Duale, who is a member of the committee, said they will be meeting on Tuesday, "And if we agree, I shall call for a special sitting of the National Assembly."
He also suggested the Public Finance Management Act 2012 be amended to allow the Treasury, in a future stalemate, to automatically disburse money to counties as constitutionally mandated at 15 per cent of the national revenues from the last audited national books of accounts.
Whereas governors welcome the call for mediation, Council of Governors chairperson Wycliffe Oparanya said that counties have raised broader constitutional issues in the Supreme Court which will be best addressed by the apex court.
"Contrary to public perception that the case is based on figures contained in the Division of Revenue Bill, the reference raises fundamental constitutional issues surrounding the process of the nationally raised revenue between the two levels of government," Mr Oparanya said in a statement.
Laikipia Governor Ndiritu Muriithi has warned that devolution is on the verge of collapse due to the tussle.
"It would be very sad indeed if those of us in leadership positions allowed devolution to suffer the fate of its implementation on our watch," he told the Sunday Nation on Saturday.
Additional reporting by James Murimi