Okiya Omtatah and Wanjeri Nderi want courtto certify the petition urgent and issue a temporary injunction prohibiting the National Treasury, Attorney-General and Parliament from considering, implementing or giving effect in any way to the National Budget that was read on Thursday by Cabinet Secretary Ukur Yatani.
In the application, they are arguing that the budget is unlawful and unconstitutional because of exceeding the mandatory limit set by Parliament in the Budget Policy Statement by some Sh608.85 billion. The ceiling had been set atSh3.023 trillion, they say.
They are also arguing that the national budget violates the requirement for thedevelopment component of the Budget to be at least 30 per cent of the total.
“It violates the requirement that the deficit should not be more than the development component,” reads the court papers.
They argue that therecommendations of Budget Policy Statement for 2021/2022 were to form the basis for the finalisation of the 2021/2022 National Budget pursuant to section 25(8) of the Public Finance Management Act, Public Finance Regulation 27(4), and Standing Order 232(10).
“Contrary to the above, the National Treasury & Planning CabinetSecretary presented a Sh3.632 Trillion budget to Parliament, deviating from the policy statement. The Budget estimates that the Cabinet Secretary submitted to Parliament are illegal andunconstitutional,” the activists say.
In their view, the National Treasury has ousted Parliament and the public in the budget making process.
While emphasising that there should be openness and accountability, including public participation in financialmatters, the activists believe that by exceeding the ceiling that had been set by Parliament, the National Treasury acted beyond its powers.
“In rejecting/ignoring the Sh3.023 trillion Budget Policy Statement ceilingapproved by Parliament after public participation, the National Treasury exercised powers it doesn’t have in legislative matters and voided the authority and mandate of Parliament,” reads the court papers.
Disregarding public views
They have also accused the Treasury of disparaging and disregarding public views, adding that the proposed budget is unrealistic and unreasonable based on what Kenyans and Parliament said and approved during the Budget Policy Statement making process.
In regard to development expenditure, they have observed thatSection 15(2)(a) of the Public Finance Management (PFM) Act states that a third of the budget must be for development.
However, in the Sh3.03 trillion National Budget, the development component should be900.9 billion yet it has been set at Sh669.6 billion. Thus there is violation of Section 15(2)(a) of the PFM Act by Sh231 billion.