The decade-long controversy dogging the Constituencies Development Fund does not only stem from its abuse but also from its constitutional invalidity, which is, going by the Supreme Court’s verdict, a substantial issue
By David Wanjala
There is a hangover that stems from the pre-2010 constitutional dispensation to the effect that the grassroots development agenda is the domain of the Legislature.
Unfortunately, this thinking is deeply rooted in the political elite and the masses and must be disabused. The former has ingeniously normalized and retained it in the post-2010 constitutional era in the name of the Constituency Development Fund (CDF) in total disregard of the constitutional mandate.
The Constitution of Kenya 2010 creates a decentralized system of government with two of the three arms of government, the Legislature and the Executive, as provided for under Article Six, devolved to the 47 political and administrative counties.
According to Art.94 of the Constitution, legislative authority is derived from the people. At the national level, it is vested in and exercised by Parliament, which manifests the nation’s diversity, represents the people’s will, and exercises their sovereignty. Parliament, consisting of the National Assembly and the Senate, may consider and pass amendments to the Constitution and alter county boundaries. Parliament also must protect the Constitution and promote democratic governance. It also has the sole power of making provisions with the force of law.
Separately, the National Assembly has specific roles unique from those of the Senate. It, according to Art.95, represents the people of the constituencies and special interests, deliberates on and resolves issues of concern to the people, enacts legislation, determines the allocation of national revenue between the levels of government, appropriates funds for expenditure by the national government and other national State organs and exercises oversight over national revenue and expenditure.
The National Assembly also reviews the conduct of the Office of the President, the Deputy President, and other State Officers and initiates the process of removing them from office. It also approves declarations of war and extensions of states of emergency.
The National Assembly’s counterparts in the counties are the County Assemblies with similar functions and roles among them; making any laws that are necessary for the effective performance of the functions and exercise of the powers of the county government, exercising oversight over the county executive committee and any other county executive organs while respecting the principle of separation of powers. County Assemblies may also receive and approve plans and policies to manage and exploit the county’s resources and develop and manage its infrastructure and institutions.
The Senate, on the other hand, represents the counties and serves to protect the interests of the counties and their governments and participates in the law-making function of Parliament by considering, debating, and approving Bills concerning counties.
It also determines the allocation of national revenue among counties, exercises oversight over national revenue allocated to the county governments, and participates in overseeing state officers by considering and determining any resolution to remove the President or Deputy President from office.
These are clear legislative functions as outlined in our supreme law. They do not confer development delivery roles to our legislators at national or county levels.
The CDF was introduced in 2003 through the Constituencies Development Fund Act, 2003 in the wake of the National Rainbow Coalition Government under President Mwai Kibaki to redistribute development resources across regions equitably and to disrupt regional imbalances that were so entrenched in the successive independence party’s overly centralized regimes.
It was the precursor to the devolved system of government that we so much cherish today. No doubt, the Fund, which has undergone various administrative amends, has achieved milestones notwithstanding wanton mismanagement that is reported in some constituencies. The Act has been amended severally, including in 2007, 2013, and 2015, when it changed to the National Government Constituencies Development Fund (NGCDF) Act 2015 in resonance with a judgment of the High Court.
The Constitution of Kenya 2010, with unmatched clarity on the separation of powers, mounted roadblocks on the Fund, which public-spirited individuals did not hesitate to exploit to question its constitutionality. According to Legal Information Institute, separation of powers is a doctrine of constitutional law under which the three branches of government; executive, legislature and judiciary are kept separate, with each branch wielding certain powers to check and balance the other branches.
The Institute of Social Accountability and Centre for Enhancing Democracy and Good Governance petitioned the High Court in 2013 seeking a declaration that the CDF Act 2013 violated the Constitution on two fronts. The petitioner sought clarification on the process leading to its enactment, the substance of the legislation, including the nature, administration, and the Fund’s management. The petition’s grounds were that the Act contravened the constitutional principles of the rule of law, good governance, transparency, accountability, separation of powers, and the division of powers between the national and county governments and the public finance management and administration.
The Court agreed with the petitioners and found that the Act establishing the Fund was unconstitutional and, therefore, invalid. It, however, lacked the balls to order its scrapping. It suspended the constitutional invalidity for one year to allow Parliament to align the Act with the Constitution.
Parliament, nonetheless, appealed the High Court’s decision even as it seized the opportunity to attempt to align the Fund to the Constitution by changing it to National Government Constituency Development Fund Act. Parliament scored half a win in the Court of Appeal as the Court disagreed with the High Court’s declaration of total constitutional invalidity of the CDF Act 2013. The Court, in the 2017’s judgment, merely declared Sections 24(3)(c), 24(3)(f), and 37(1)(a) of the Constituencies Development Act, 2013 unconstitutional and invalid for violating the principle of separation of powers, and struck them down from the Act. The Court of Appeal attempted to remove Members of Parliament, including the Senator, Member of the National Assembly, and Woman Rep, from the management of the Fund. It was cosmetic. This decision was challenged in the Supreme Court.
The Supreme court in August 2022 found, among other things, that the CDF Act 2013, as amended by the CDF (Amendment) Act, 2013, was unconstitutional on account of procedural lapses for failing to involve the Senate in its enactment and offended the division of functions between the national and county governments, constitutional principles on the division of revenue, constitutional principles on public finance, and the constitutional principle of separation of powers and declared the Constituency Development Fund Act, 2013 unconstitutional. The jury is still out on whether the same fate affects the since-amended NGCDF Act 2015.
The decade-long controversy dogging the Fund does not only stem from its constitutional invalidity, which is, going by the Supreme Court’s verdict, a substantial issue, but more so from its abuse. The Fund has more often than not been turned into a major cash cow for legislators, with audit reports flagging misappropriations and outright embezzlement besides giving leverage to incumbent parliamentarians out to defend their seats in general elections.
For this, Members of County Assemblies have been adamant on ward development funds just like that of their counterparts in the National Assembly. That the same is not provided for in law has never mattered to them. They have wanted it by hook or crook, brewing most of the wrangles in the counties between the assemblies and the executives since the advent of Devolution. It is what derailed Makueni County’s inaugural government for an entire five-year term. It is what recently led to Meru County Governor’s record impeachment in the County Assembly hardly four months into office, just to mention a few.
There’s a common consensus that development activities are not within the purview of legislators. The Supreme Court of Kenya has since found that the Fund offends the division of functions between the national and county governments and the constitutional principles on the division of revenue, public finance, and separation of powers.
With the firm anchorage of Devolution in our system of governance, it is high time the Fund was scrapped, in whatever form it obtains in both levels of government. Let each arm of government focus and commit to their core functions as espoused in the supreme law of the land.