Entrenching CDF is no cure for clash with Constitution

Matungulu MP Stephen Mule has sought the authority of National Assembly Speaker Moses Wetang’ula to introduce a bill that would entrench the National Government Constituency Development Fund (NG-CDF) in the Constitution.

He also wants other funds—such as the National Government Affirmative Action Fund (NGAAF), Youth Enterprise Development Fund, Uwezo Fund and the proposed Senate Oversight Fund enshrined in the supreme law.

A third-term MP, Mr Mule is not a stranger to the principles that underpin governance and management of public affairs as set out in the Constitution. A relevant question on Parliament’s website, on NG-CDF, has always elicited interesting public response.

Of the 10,932 people who expressed their opinion about it, 5,664 (52 per cent) said the fund has had a positive impact on their constituency; 4,268 (39 per cent) said it has had no impact; and 1,000 (nine per cent) were not sure of its impact on them. This is food for thought, especially now that NG-CDF was declared unconstitutional by all the Superior Court.

Promote democratic governance

One of Parliament’s roles is to consider and pass amendments to the Constitution. But the Constitution demands of the Legislature to protect it and promote democratic governance. To that extent, it is within the purview of the MP and the institution to make the Constitution work better by ensuring more resources are decentralised for the people.

The MP should meticulously follow the steps laid out in Article 256 of the Constitution providing for amendment of the supreme law through the parliamentary initiative. He will also have to secure the support of at least two-thirds of all members of the National Assembly and the Senate. The 47 elected senators would support entrenchment in the Constitution of the proposed Senate Oversight Fund.

The MPs seem to be in good company: President William Ruto has expressed his unequivocal support for NG-CDF. He even suggested that pronouncements by the superior courts on the CDF Act, 2013 were based on earlier versions of the law. The President and MPs are convinced that the Act, as amended in 2016, is consistent with the Constitution.

NG-CDF was unconstitutional from the outset but that was obscured by the centralised system of government under the old constitution. The roles of the Legislature are to be a deliberative and representative assembly, pass laws and policies and oversight the Executive as it implements policies and laws. The judges did not have to be geniuses to take judicial notice of such an obvious and glaring fact.

This is the main ground on which the Supreme Court declared the CDF Act, 2013 unconstitutional. The apex court also ruled that the law violated the constitutional principles on division of revenue. The law also offends the division of functions between national and county governments, and the constitutional principle on separation of powers and as well as the principles on public finance.

 The extent that the CDF Act puts resources at the disposal of lawmakers offends the principle in ways that are not contemplated even in the muddled boundaries between the three arms of government. The assignment that MPs have cast upon themselves as they seek to navigate this maze of unconstitutionality of the law is herculean.

Mr Churchill is the executive director of the Kenya National Civil Society Centre. [email protected].