Proposed senators’ fund violates Constitution on their mandate

The Speaker of the National Assembly recently revealed that the House was to consider a Bill that proposed the creation of a Sh300 million fund to facilitate senators’ oversight role of counties.

The fund creates a function that is not provided for nor envisioned under the Constitution, the very document that brought into being devolution and created the Senate.

This follows a familiar trend that has seen members of the current Parliament reinterpret and reallocate constitutional functions and essentially butcher the Constitution to satisfy their vested interests. The National Assembly recently created a special fund to be run by woman representatives modelled after the Constituency Development Fund.

Senators, MPs, and woman representatives justified their actions with the fact that during the Kibaki regime, the CDF was hailed for bringing development closer to the people by pioneering development projects that were informed by the unique needs of the local people.

At the time, it brought development projects to areas that were erstwhile neglected by the national government. However, this rationale is no longer valid under our new constitutional dispensation because counties and governors have replaced constituencies and legislators as the basis and mode of taking funds, services, and development projects closer to the people.

The High Court declared the CDF unconstitutional because it did not fit into any of Kenya’s constitutional structures, especially the county governments. A challenge to the Affirmative Action Social Development Fund is pending in court.

The Constitution sets out the functions of the Senate — to represent counties and protect their interests and those of the local governments, participate in the law-making function of Parliament concerning counties, determine the allocation of national revenue among counties and exercise oversight over national revenue allocated to the county governments, and participate in the oversight of State officers by considering and determining any resolution to remove the President or Deputy President from office.

The proposed Bill attempts to usurp the powers and functions of the Auditor General, who is charged with auditing and reporting on the accounts of national and county governments.

It is, therefore, curious that the National Assembly and the Senate would conspire to create a fund for senators after the High Court invalidated the CDF and froze the affirmative action fund for these very reasons.

The principle of separation of powers dictates that authority be divided between the Executive, the Legislature, and Judiciary and not be concentrated in one.

The rationale is that these branches of government 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 is unlikely do so in an impartial way and that would fundamentally undermine the rule of law. Power, in other words, must be checked or it is likely to be abused. It thus follows that senators, being members of Parliament, cannot take up the functions of the Auditor-General, an office protected by the Constitution.

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.

Senators should follow their mandate of championing laws and policies that support devolution and enhance accountability, leadership, and integrity by ensuring that financial allocations to the counties are enhanced and building the capacity of the institutions that are mandated to rein in the misuse of resources by governors, MCAs, and county executives.

They do not need to preside over any funds to gain relevance. Such functions belong to the national or county governments.

Mr Kiprono is an advocate of the High Court and senior programmes officer at Article 19 Eastern Africa. [email protected].