By David Wanjala
What did members of the National Assembly expect from the three-member High Court bench in a petition that sought the declaration of the Constituencies Development Fund (CDF) Act unconstitutional?
Immediately the bench, comprising of Justices David Majanja, Isaac Lenaola and Mumbi Ngugi, delivered its judgment – which granted the prayers of the petitioners, the Institute of Social Accountability and Centre for Enhancing Democracy and Good Governance, that indeed the CDF Act violates the Constitution, members of the National Assembly, led by their Speaker, went on the offensive. They extolled, in a manner to incite the public against the Judiciary, the virtues of CDF in the most flowery language and vowed to fight back.
“It is possible to operate the CDF model alongside the Constitution so that it does not affect what is being done by the counties. CDF has greatly impacted the lives of many Kenyans. And we can still make it more effective by re-aligning it with the Constitution,” said Justin Muturi, Speaker of the National Assembly, after the court declared the kitty unconstitutional and therefore invalid.
“Without CDF, there’s no Kenya… CDF has been important in developing various parts of the country. We are going to expedite the process of amending the Act to align it to the constitution in the shortest time possible. We will not wait for the 12-month period given by the High Court,” said Leader of Majority in the National Assembly Aden Duale.
Gichugu Member of Parliament Njogu Barua told his constituents not to worry about the move by the High Court as like-minded legislators had already appealed against the verdict. He said scrapping CDF would adversely affect development since the people are now adoptive to the system, which brings rapid development as per their needs.
“Wherever you go in any part of this country, there is always an everlasting CDF mark and I wonder whether some people really have eyes,” he said. He was speaking at a political rally in his constituency.
The effectiveness or otherwise of the CDF was not part of the list of issues for determination before the bench and how Members of the National Assembly expected the determination to revolve around how effective the fund has been, beats logic.
Core mandate
The basic function of the Judiciary is to interpret and apply the law. With the matter at hand, Article 165 (d) of the Constitution puts the High Court at the centre of it. It gives the court jurisdiction to hear any question respecting the interpretation of the Constitution, including determination of: (i) the question whether any law is inconsistent with or in contravention of the Constitution; and (ii) whether anything said or done under the authority of the Constitution or of any law is inconsistent or in contravention or the Constitution.
In (iii), the Constitution gives the High Court jurisdiction to determine any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and (iv) questions relating to conflict of laws under Article 191.
In exercising judicial authority, the Constitution guides the courts and tribunals thus: Article 159 (2) (a) justice shall be done to all, irrespective of status; (b) justice shall not be delayed; (d) justice shall be administered without undue regard to procedural technicalities; and (e) the purpose and principles of this Constitution shall be protected and promoted.
The CDF was originally established by the now repealed Constituencies Development Fund Act, 2003. The Act set aside a specific portion of the annual government budget for financing of grassroots infrastructure within constituencies. For purposes of administration of the fund, a national CDF Board was established, and at the constituency level CDF committees, with respective members of Parliament as patrons.
Dismissed submission
The CDF Act 2003 underwent major amendments in 2007, including the formation of a fully-fledged state corporation known as the CDF Board to replace the National Committee. This Board was given the mandate to manage the fund, including approving projects.
In January 2013, Parliament passed the CDF Act, No 30 of 2013, which effectively repealed the CDF Act, 2003. On August 2, 2013, the CDF (Amendment) Bill was published. The amendment Bill was introduced for the first time in Parliament on August 3, 2013. It went through the processes of deliberation and was passed the same day. The notification that the Amendment Bill had been published was made in the Kenya Gazette of August 8, 2013, and the Bill assented to by the President on 13th September 2013.
The amended Act purported to reduce the roles of an MP to being purely an overseer of the fund, supposedly giving the legislators the ceremonial role of mobilising community members for project identification. This was a concerted effort by the House to align the Act to the Constitution rather than scrap it all together.
Following the parties’ pleadings and submissions before the bench, the core issue presented for determination was whether the CDF Act as amended was constitutional.
The court identified four key issues for consideration: (a) whether the process leading to the enactment of the CDF Act was constitutional; (b) whether the CDF Act offended the principles of public finance and division of revenue as anticipated by the Constitution; (c) whether the CDF Act violated the division of functions between the national and county governments; and (d) whether the CDF Act offended the principle of separation of powers.
The petitioners challenged the constitutionality of the CDF (Amendment) Act 2013 on the basis that the Senate was not involved in its passing, yet it was a Bill concerning the counties, for whose oversight Senate is responsible. In its response, the National Assembly submitted, among others, that the CDF (Amendment) Act was not considered by the Senate because it was resolved by the Speakers of the two Houses that the Act did not concern counties.
The judges dismissed the respondent’s submission thus: “The issue whether the matter is one for county government is of constitutional importance and the decision of the respective speakers, while respected, cannot be conclusive and binding on the court whose jurisdiction it is to interpret the Constitution and as the final authority on what the Constitution means.”
“The fact that the legislation was passed without involving the Senate, and by concurrence of the Speakers of both House of Parliament, is neither conclusive nor decisive as to whether the legislation affects county governments. In other words, while concurrence of the Speakers is significant in terms of satisfaction of the requirements of Article 110(3) of the Constitution; it does not by itself oust the power of this Court vested under Article 165(3)(d) where a question is raised regarding the true nature of legislation in respect to Article 110(1). The court must interrogate the legislation as a whole and determine whether in fact the legislation meets the constitutional test of a matter, ‘concerning county government,’” the court added, concluding:
“The CDF (Amendment) Bill concerns county governments and consequently we find and hold that it is unconstitutional on the ground that the Senate was not involved in the enactment of the Bill.”
On the issue of whether the CDF violated principles of public finance and division of revenue, the Court determined that CDF was not a conditional grant to the county governments within the meaning of Article 202(2) of the Constitution, that Article 202 envisages equitable sharing of the national government revenue between the national and county governments.
Nevertheless, the Court said that “if national government so desired, it could, at its discretion, grant additional revenue, whether conditionally or unconditionally through the county governments through existing structures,” and that such grants must respect the structures established under the Constitution.
Similarly, the bench found in favour of the petitioners on the question of whether the CDF Act violated the division of powers and functions. “Power and functions are distributed at only two levels of government, the national and county levels,” the Court determined, adding that the purpose and design of the Act is constitutionally flawed.
“By charging it with local projects under section 22 of the CDF Act, it threatens to upset the division of functions between the national and county levels of governments and interfere with the county government autonomy,” the court ruled.
The Court equally agreed that by involving members of Parliament in the planning, approval and implementation of the CDF projects, the CDF Act violated the doctrine of separation of powers between Executive and Legislative functions. “It also undermines some key national values and principles of governance, including devolution of power, accountability and good governance.”
Grace period
Consequently, the Court issued a declaration that the CDF Act 2013 is unconstitutional and therefore invalid.
The Court, even as it remained faithful to the guidelines of the Constitution in carrying out its duties, was alive to the question of the consequences of the declaration of invalidity. Ordinarily, the judges said, orders of invalidity take immediate effect but the court, in framing appropriate relief must be mindful of the circumstances of the case and in particular the need to avoid undue hardship.
“The CDF is a system that has been running over the years and at the moment, the funds for the financial year 2014/2015 have been disbursed and the budgetary process for the next financial year is in progress… the fund has entered into legal obligations that need to be dealt with. We must accord leverage to public interest and good order while conscious of our country’s political realities. We are of the view that a temporary suspension of the invalidity of the Act is the appropriate relief in the circumstances,” the judges opined and suspended the order of invalidity for a period of 12 months from the date of judgment.
Importantly, how key leaders in society reacted at the stinging ruling is crucial, especially in cementing the principle of separation of powers.
It is understandable how most MPs reacted to the judgment. It affects them directly. CDF, over the years, has given sitting MPs leverage in campaigns and helped them maintain a stranglehold on their constituents. However, Justin Muturi and Aden Duale are no ordinary members of Parliament. Muturi is Speaker of the National Assembly and Duale the Leader of Majority. They are tasked to provide leadership, which demands restraint at all times, not reactionary utterances that may undermine independence and powers of distinct arms of government.
Listen to Ann Waiguru, the CS Devolution and Planning, responding to questions by the press that required her to comment on the judgment shortly after it was delivered.
“We are still perusing through the ruling to see what exactly it said. We haven’t received the hard copy. Thereafter, we are waiting to see what the finalisation of that decision will be depending on the response from Members of Parliament.”
One wishes Muturi and Duale shared the same wisdom.
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