The National Assembly during a past session.
Members of Parliament have set in motion the process of anchoring in the Constitution three key funds run or oversighted by the MPs — the National Government Constituency Development Fund (NG-CDF), the Senate Oversight Fund and the National Government Affirmative Action Fund.
Stung by various court rulings that have declared the NG-CDF as illegal since it’s not anchored in the Constitution, the lawmakers have vowed to fast track the process and ensure that the fund is properly in line with the law by February next year.
The proposal is co-sponsored by Ainabkoi MP Samuel Chepkonga and his Rarieda counterpart Otiende Amollo seeking to amend the constitution through a parliamentary initiative as provided under Article 256 of the constitution.
This is the third attempt by MPs to amend the law in order to anchor NG-CDF in the constitution.
In the 12th parliament, Matungulu MP Stephen Mule and his Gichugu counterpart Githinji Gichimu co-sponsored a similar proposal but its consideration was not concluded by the House.
Speaker of the National Assembly Moses Wetang’ula has now directed that two proposals should now be considered by the Justice and Legal Affairs committee for consideration which is expected to table its report on February 11, 2025
“As required under Standing Order 114 (7A), the committee shall expeditiously invite and consider submissions from the Attorney General, the commissions and Independent offices established under chapter 15 of the constitution and any other body with a law reform mandate,” Mr Wetang’ula said.
In 2022, the House also established a joint parliamentary ad hoc committee on a proposal to amend the constitution to entrench the specialised fund in law. The term of the committee elapsed before submitting its report.
Mr Chepkonga explained they are now seeking to entrench the three funds in the Constitution in order to ensure that the critical role that fund plays in promoting the participation of people in identifying development projects is safeguarded.
He said the entrenchment of the Senate Oversight Fund will ensure that the Senate is adequately empowered and resourced to perform its oversight functions as stipulated in Article 96 of the Constitution.
For the National Government Affirmative Action Fund, Mr Chepkonga said the move will ensure that groups such as the youth, women, persons with disabilities and elderly groups access funds for the promotion of enterprise development at the county and constituency level.
Mr Chepkonga decried that NG-CDF has faced a number of legal challenges in the court and the legislative proposal will cure all the questions raised.
“We have removed these funds from courts now. We want to know what is unconstitutional once they have been entrenched in the constitution,” Mr Chepkonga said.
“We must entrench these funds in the constitution to secure the future of our children and the community,” he added.
Chairman of the Justice and Legal Affairs Committee George Murugara said there must be an end to the unconstitutionality of the fund.
“At the end of the day, there must be an end to every issue now that we are being told NG-CDF is unconstitutional, we are going to make it constitutional and nobody whatsoever is going to say that is not constitutional again,” Mr Murugara said.
“We have to entrench these funds especially the NG-CDF in the constitution because the courts have expressed themselves in a manner which we have never agreed with,” he added.
In September this year, the High Court declared NG-CDF unconstitutional, dealing a blow to MPs who have been using the billions allocated to win the support of voters.
A bench of three judges declared the Act unconstitutional for violating the principle of separation of powers and over the failure of MPs to consult the Senate when the law was enacted.
“The National Government Constituency Development Fund (NG-CDF) as amended in 2022 and 2023 is hereby declared unconstitutional. NGCDF and all its projects, programs and activities shall cease to operate on the stroke of midnight on June 30, 2026,” the bench headed by Justice Kimondo ruled.
While quashing the Act, the judges faulted the MPs for encroaching on the mandate of the national and county governments.
According to the court, a constituency is not a delivery unit but an electoral unit and allocating the billions to MPs was a waste of taxpayers' money.
Mr Chepkonga however faulted this decision saying under the National Government Coordination Act, section 14, a constituency has been made a service delivery unit
“This was a total misunderstanding by the High Court, we made every effort to explain to them how a constituency is a delivery unit. This particular act has neither been nullified nor declared unconstitutional,” Mr Chepkonga said.
The CDF Act was enacted in 2003 and later amended in 2007 and provided that the government was to set aside at least 2.5 percent of the last audited revenue as approved by National Assembly, to be channelled to the Fund, for use at the constituency level.
