Petition no 004 of 2017

In the matter of articles 10(2)a,35(1),37,69(d),118, 174(c)(d),196(1(b), 201(a)(d)(e)and 4th schedule part ii (14) of the 2010 constitution of Kenya , sections 87,91,of the 2012 county government act of Kenya and sections i37,207 of the 2012 public finance and management act 2012

BETWEEN

KISUMU ARTS AND CULTURE GUILD.

The other petitioners as named in the annexture……………………………………..petitioners

And

Controller of budget………………………………………..….………………………………..…………….respondents.

The senate of the republic of Kenya…………………………..……………………………………...respondents

Commission on revenue allocation of Kenya…………………..…………………………………respondents.

Speaker of the county assembly of Kisumu .................................................……. respondents

County assembly of Kisumu……………………………….………………………..…………………… .Respondents

Countyexecutive……………………………………………….……………………………………….…………respondents

County budget and appropriation committee………………………………………..…...........respondents

To:

THE CONTROLLER OF BUDGET.

Petition

The humble petition of the petitioners listed the annexure are all care of Kisumu Arts and Culture Guild P.O Box 1933 -40100 Kisumu for the purpose of this petition and resident of Kisumu county in the republic of Kenya and are as follows:

Names and descriptions of petitioners and other parties.

The first petitioners are non-state actors dealing with arts and culture and therefore form an integral part to file this petition on behalf of the artists of Kisumu County.

The annexture are the members of the county of Kisumu and therefore part of the petition.

The 1st respondent is the controller of budget who oversees the implementation of county and national budgets and therefore part of the petition.

The matters complained of

PETITION ON KISUMU COUNTY BUDGET FOR FISCAL YEAR 2017/18 ON CONSULTATIONS OF THE PUBLIC

28th MARCH 2017.

INTRODUCTION.

We the members of the Kisumu Arts and Culture Guild have noted with great concern that there has been no Sufficient Public Hearing Forums on the County Fiscal Strategy Paper for the financial year 2017/2018. It is our knowledge that the deadline for the submission of the Fiscal strategy paper for approval is 31st March is fast approaching. Failure to consult the Public in Budget Making will serve as a setback for devolution and go against the constitution of Kenya 2010.

FACTS

We wish to draw the attention of the Assembly and leadership of the assembly and relevant committee dealing with the budget to the following: that;-

• Public participation in governance is enshrined in the Constitution of Kenya at the county level and in public finance. Article 196(b) of the Constitution opines that a county assembly shall facilitate public participation and involvement in the legislative and other business of the assembly and its committees. Further, a county assembly may not exclude the public, or any media, from any sitting unless in exceptional circumstances the speaker has determined that there are justifiable reasons for doing so.
• Article 201(a)of the Constitution provides thatthe following principle shall guide all aspects of public finance in the Republic, that there shall be openness and accountability, including public participation in financial matters
• By dint of section 87 part (viii) of the County Government Act citizen participation shall be based on the following principles; timely access to information, data, documents, and other information relevant or related to policy formulation and implementation and; reasonable access to the process of formulating and implementing policies, laws, and regulations, including the approval of development proposals, projects and budgets, the granting of permits and the establishment of specific performance standards.
• In Glenister vs. President of the Republic of South Africa and Others (CCT 48/10) [2011] ZACC 6; 2011 (3) SA 347 (CC) ; 2011 (7) BCLR 651 (CC), it was held that:
• Citizens have the right to petition the county government on any matter that is the responsibility of the county government as per section 88 of the County Government Act and it is in the same vein that this petition is brought.
• Section 91 of the County Government Act provides platforms for citizen participation and part (c) of the same section sets forth budget preparation and validation fora as one such platform while section 115 thereof provides for citizen participation in county planning.
• Section 125(2) of the Public Finance Management Act provides that the county executive member for finance shall ensure that there is public participation in the budget process which in this case was done but not to the public satisfaction hence not taking seriously the inputs of the citizens in Kisumu County.
• With regards to public participation it was stated in Robert N. Gakuru and others vs. Governor of Kiambu County &Others by judge G V Odunga that, In my view public participation ought to be real and not illusory and ought not to be treated as a mere formality for the purposes of fulfillment of the Constitutional dictates. It is my view that it behooves the County Assemblies in enacting legislation to ensure that the spirit of public participation is attained both quantitatively and qualitatively. It is not just enough in my view to simply “tweet” messages as it were and leave it to those who care to scavenge for it. The County Assemblies ought to do whatever is reasonable to ensure that as many of their constituents in particular and the Kenyans in general are aware of the intention to pass legislation and where the legislation in question involves such important aspect as payment of taxes and levies, the duty is even more onerous. I hold that it is the duty of the County Assembly in such circumstances to exhort its constituents to participate in the process of the enactment of such legislation by making use of as many forums as possible such as churches, mosques, temples, public barazas national and vernacular radio broadcasting stations and other avenues where the public are known to converge to disseminate information with respect to the intended action.
• Poor pre-participation preparations in terms of communications, publicization and preparation of requisite documents the citizens are supposed to be engaged on have always and will continue to undermine effective public participation.
• We held a meeting on 27th March 2017 with a purpose to analyze the implementation status of Kanyakwar Cultural Center perimeter wall as approved in the county budget 2016/2017. We have noted that no perimeter wall was constructed and a further 4.5 million allocated in the 2017/2018 for the completion of a fence that was not even constructed. We also noted that Ang’ogo Remo Cultural Centre Still needs an additional 5million to be completed despite having consumed over 7 million already in previous budgetary allocations. We feel that the impact so far is less than the financial input.

“For the opportunity afforded to the public to participate in a legislative process to comply with section 118(1), the invitation must give those wishing to participate sufficient time to prepare. Members of the public cannot participate meaningfully if they are given inadequate time to study the Bill, consider their stance and formulate representations to be made. Two principles may be deduced from the above statement. The first is that the interested parties must be given adequate time to prepare for a hearing. The second relates to the time or stage when the hearing is permitted, which must be before the final decision is taken. These principles ensure that meaningful participation is allowed. It must be an opportunity capable of influencing the decision to be taken. The question whether the notice given in a particular case complies with these principles will depend on the matter at hand.

RECOMMENDATIONS

From the foregoing provisions it is clear that public participation plays a central role in both legislative and policy functions of the Government and it is especially true with the devolved system of governance meant to involve the common mwananchi comprehensively in governance. It applies to the processes of legislative enactment, financial management and planning and performance management. We the petitioners therefore recommend the following:

Move with speed to advertise and publicize the schedules for budget hearings estimates as a matter of urgency but bear into consideration the requisite timelines for such advertisement to conform to needed participation.

That the constitution of Kenya 2010 article 174 c, d, e, and County government act 2012 emphasizes promotion of democratic and accountable exercise of power. It gives power of self-governance to the people and enhanced meaningful participation of the people in exercise of the power of state and in making decisions on issues that affect them. The right of communities and stakeholders to manage their own affairs as well as to further their own development.

That in the county assembly investigates the implementation of art and culture budget allocations as provided for in the county Fiscal Strategy Papers and budgets 2014/2015, 2015/2016 and 2016/2017 where millions of shillings were allocated for talent development but the impacts analysis and feedback on the ground failed to match the financial input allocations that were made in the aforesaid budgets.

A case in point is the construction of a perimeter wall at Kanyakwar cultural center which is yet to be actualized despite the tax payers footing over 6 million last year for its construction and a further 4.5 million for its “completion”. We smell corruption.

That in overall the previous plans has lacked focuses on the following:

Priorities-

• Establishing a county Arts and Culture School
• Establishing an annual County Arts and Culture Revolving Fund of Kenya shillings ten million (Kshs 10 ,000 000) to support talent development and productions as outlined by artists during the finance bill 2016/2017.
• Establishing an Arts and Culture committee in the house.
• Establishing and implementing a County Cultural policy.

We regard this as a violation of the law-PFM Act 2012 110-113.Art 43, 53 COK, 2010 provides and Emphasizes on these Rights as Entitlements and Not Privileges.

We urge the county Assembly to move with haste to meet with the representatives from the Kisumu Arts and Culture Guild to address the above concerns and recommendations as the time stipulated is coming to an end.

We also expect response to this Petition within 5 days giving clarity on the plans to have public hearings, the suggested date for our meeting and we are ready to work with the Kisumu County Government in safe guarding the gains of devolution by playing our constitutional role of ensuring effective public participation.

In realization of the same, we are also ready to cooperate and consult with other institutions including but not limited to Courts in ensuring that due legal framework is adhered to for realization of effective service delivery in a transparent and accountable manner.

The petitioners pray that:-

• That this petition is dealt with immediately in view of the urgency of this matter and the seriousness of the issues raised.
• That the speaker of the assembly invokes her mandate and duty to allow the assembly adequate time to interrogate the budget 2017/ 2018 and make amendments that incorporates our proposals.
• The assembly uses its wisdom and powers to instruct and or to advise the executive to alter priorities as we propose and increase their budgetary allocation.

We the petitioners

Members Kisumu Ar and Culture Guild