Ruling on CDF could kill other funds

What you need to know:

  • Ms Wanjiru Gikonyo, the coordinator of The Institute for Social Accountability (Tisa) noted that from the ruling, funds under structures parallel to the county and national governments are unconstitutional.
  • Law Society of Kenya chairman Eric Mutua agreed, saying: “The argument can be advanced and can also apply to those other funds because they (the judges) narrowed down the funds into two channels (the national and the county levels).”
  • Mr Mutua said other funds such as the Women, Youth Enterprise and Uwezo Funds would not be affected because their structures as designed by the National Treasury are national government initiatives.

The declaration of the Constituency Development Fund Act unconstitutional might block plans to create equivalent funds to be overseen by women representatives and MCAs.

A majority of the MPs have rallied to CDF’s defence and vowed to appeal Friday’s ruling. However, the argument on which the judges based their ruling could apply to the funds under the 47 Women MPs to which Sh2.03 billion was allocated in the current financial year.

Ms Wanjiru Gikonyo, the coordinator of The Institute for Social Accountability (Tisa) noted that from the ruling, funds under structures parallel to the county and national governments are unconstitutional.

“We’re happy the High Court was clear that all funds not channelled through either county or national governments are illegal. They didn’t say just CDF. They said all,” said Ms Gikonyo.

“From the argument about separation of powers, elected representatives should not be involved in planning, approval, coordination and implementation of development projects,” she added.

Law Society of Kenya chairman Eric Mutua agreed, saying: “The argument can be advanced and can also apply to those other funds because they (the judges) narrowed down the funds into two channels (the national and the county levels).”

This would mean that as MPs plan to change either the Constitution or the CDF Act to align it accordingly, they should also focus on the funds created for the MCAs and women representatives.

Mr Mutua said other funds such as the Women, Youth Enterprise and Uwezo Funds would not be affected because their structures as designed by the National Treasury are national government initiatives.

Mr John Waiganjo (Oljoroorok, TNA) said if the ruling was allowed to stand, “this fund for women stands prejudiced.

“The problem with CDF would be replicated in the funds for the Woman Representatives as the regulations approved by the Cabinet create a structure equivalent to the one used to manage the CDF,” he warned.

“The only problem is our role because even as ex-officio members (of the CDF committees), we play a role similar to that of patrons. Even the women fund is coming through the same way,” said Mr Waiganjo.

Mr David Ochieng’ (Ugenya, ODM) said: “If you follow the judgment, those funds would be illegal, especially the one for the wards. Wards were set up and made the planning units of counties because the money given to the counties was to be used at the ward level.”

The MPs and other commentators argue that there are two options that can be used to solve the illegality: Amending the Constitution so that CDF is directly under the central government or changing the CDF Act to remove MPs from management of the fund.