On CDF law, MPs are in flagrant contempt of the Constitution

Kenya National Assembly in session. Led by Minority Leader Francis Nyenze, the MPs made it clear that the House would not pass any budget without the Constituency Development Fund. PHOTO | FILE | NATION MEDIA GROUP

What you need to know:

  • In February, 2015, the High Court declared the fund unconstitutional because it did not fit into any of Kenya’s constitutional structures.
  • CDF was created via the Constituency Development Fund Act, 2003, to address poverty by dedicating a minimum of 2.5 per cent of government revenue to grassroots development. 
  • There were reports that MPs had appointed their relatives, friends, and supporters to turn the fund into a cash cow and a campaign tool.

The Majority Leader of the National Assembly, Aden Duale, recently triggered a storm when he informed members that the Constituency Development Fund (CDF) was not factored in the budget.

Led by Minority Leader Francis Nyenze, the MPs made it clear that the House would not pass any budget without the CDF.

In February, 2015, the High Court declared the fund unconstitutional because it did not fit into any of Kenya’s constitutional structures, especially the county governments. The court suspended the invalidation of the Act for 12 months to allow the National Assembly to align the fund with the Constitution.

In an attempt to comply with the deadline, the National Assembly passed the National Government Constituencies Development Fund Act that has sadly maintained similar structures and functions that were declared unconstitutional in the previous law.

Suffice it to say that the fact that MPs maintain a role in the appointment of those who run the fund in their respective constituencies offends the principle of separation of powers because such functions are the exclusive province of the Executive at the national and county levels.

Article 95 of the Constitution clearly sets out the functions of the National Assembly as to represent the people of the constituencies and special interests, to deliberate on and resolve issues of concern to the people, to enact legislation, to allocate national revenue between levels of government, to appropriate funds for expenditure to the national government and other State organs, and to exercise oversight over national revenue and expenditure.

After President Mwai Kibaki was elected in 2002, the CDF was created via the Constituency Development Fund Act, 2003, to address poverty by dedicating a minimum of 2.5 per cent of government revenue to grassroots development. 

The fund was praised for bringing development closer to the people by pioneering development projects that were informed by the needs of the local people. It brought development to areas that were erstwhile neglected by the national government.

CREATES ROOM FOR CORRUPTION

However, the structure, lack of oversight, and the fact that the fund was chaired by the area MP created the perfect environment for corruption, nepotism, and parochialism.

There were reports that MPs had appointed their relatives, friends, and political supporters to turn the fund into a cash cow and a campaign tool. Nearly all tenders were awarded through corrupt means.

In August, 2010, Kenyans promulgated a new constitution that created the national and county governments.

It is clear that MPs from both sides of the political divide have chosen to ignore the Constitution in an attempt to maintain a system that favoured them and created an impression in constituents that they were the ones who directly “brought” development. Additionally, they created a similar fund for county woman representatives in flagrant contempt of the courts and the Constitution.

The principle of separation of powers dictates that the executive, legislative, and judicial powers of government be divided into different branches and not be concentrated in one. The rationale is that the branches must be separate and distinct because of the innately corrupting nature of power.

If the body that makes the laws is also in charge of enforcing them and adjudicating disputes, it would likely do so in a preferential manner, undermining the rule of law and basic fairness. It thus follows that members of the National Assembly cannot participate in the running of the CDF.

Our constitutional democracy has designed a system in which members of the National Assembly, woman representatives, and senators should provide legislative solutions to our problems and proper oversight of the executive functions.

MPs must forget the good old days when they could appeal to voters through CDF. The Constitution has taken money and resources closer to the people through devolution and county governments.

Mr Kiprono is senior programmes officer at Article 19 Eastern Africa. [email protected]. @kipdemas