Court says MPs have no role to play in CDF

A CDF project at Kaptombes Primary School in Baringo South in this picture taken on February 23, 2016. MPs could lose their executive role in the implementation of the CDF following a Court of Appeal ruling. PHOTO | CHEBOITE KIGEN | NATION MEDIA GROUP

What you need to know:

  • The decision to declare the Act as unconstitutional at the time was premature.
  • The judges noted that the management as well as implementation of CDF projects is of great public importance.

MPs could lose their executive role in the implementation of the Constituency Development Fund (CDF).

This follows a decision by the Court of Appeal in Nairobi on Friday which declared sections of the CDF Act 2013 as unconstitutional and a violation of the principle of separation of powers.

However, Judges Erastus Githinji, Hannah Okwengu and GBM Kariuki ruled that except for sections 24(3)(c), 24 (3) (f) and 37 (1) (a), the entire CDF Act is still implementable and fully operational as a law.

VIOLATE

The three-judge bench consequently struck out the said sections from the disputed law.

“The provisions of the Act, which violate the doctrine of separation of powers have been clearly identified.

Those provisions are therefore severable from the other valid provisions of the Act,” the judges ruled.
In 2015, High Court judges Isaac Lenaola, Mumbi Ngugi and David Majanja declared that the CDF Act was unconstitutional but they, however, suspended that declaration for one year to allow the national government to remedy the defect in the law.

They ruled that it contradicted principles of the constitution that relate to devolution, public finance and separation of powers.

PREMATURE

But according to the Appellate court, the decision to declare the Act as unconstitutional at the time was premature and that only the separation of powers clause was invalid.

Section 24 (3) (c) and 24(3) (f) stipulates the power to appoint an MP to execute the Fund and appoints them to perform duties reserved for the executive arm of the government.

The Appellate court pointed out that the executive functions performed by MPs could properly have been assigned to the sub-county administrator as an officer of the national government.

This is what the judges faulted in their finding and could consequently take away MPs powers to oversee CDF.

The judges noted that the management as well as implementation of CDF projects is of great public importance as it affects the beneficiaries of the Fund in the entire country and that a determination of the matter would be essential for the administration of the national governments programmes in constituencies.