End of an era as MPs lose control of fund

It’s the end of an era after MPs lost their control and management of Constituency Development Fund (CDF) projects after a new law came into operation on Friday.

Instead, the MPs’ role will be limited to mobilising the public to prioritise development projects and forward the recommendations to their respective CDF committees, which will be at liberty to pick which ones to fund in a given financial year.

The MPs will, however, continue playing an oversight role over the committees but cannot issue directives on what to implement or leave out.

The National Government Constituencies Development Fund (NGCDF) Act 2015, which came into effect on Friday, a year after the High Court declared the former Act unconstitutional, provides for MPs to be limited to their constitutional mandate of representation, oversight and legislation.

This leaves the implementation of projects to the constituency fund managers and committees.

“The MPs’ role is restricted to mobilising citizens at ward and location levels at least twice a year so that the public can prioritise their needs. The citizens then submit their priorities to the constituency CDF office, which allocates funds based on the available resources without the MPs’ involvement,” NGCDF board Chairman Elias Mbau told Sunday Nation in an interview.

“The new Act has substantially reduced the powers of MPs since they will not be members of the NGCDF implementation committees. The national board will employ an officer for each of the 290 constituencies who will be the accounting officer,” he added.

Set up in 2003, the Fund has been a pet project of MPs, who over the years have been using it to buy loyalty and financial muscle to campaign against their opponents.

The initial law creating the Fund was drafted and sponsored in Parliament by then Ol Kalou MP Muriuki Karue, now Nyandarua Senator.

The former Act required the government to set aside 2.5 per cent of the total national revenue raised in a financial year to go to the CDF basket.

The new Act, however, provides that the 2.5 per cent will be derived from the national government’s share of revenue after division with the 47 counties.

The Fund will thus be limited to implementing national government functions.

END OF GRACE PERIOD

According to Mr Mbau, apart from representation, MPs will only be required to ensure that the national government appropriates the resources, including releasing the 2.5 per cent to the constituencies’ fund.

“The other role of the MPs under the new Act is to oversee the manner the resources mobilised have been utilised through the Constituency Oversight Committee,” Mr Mbau, himself a former MP, said.

The National Government Constituencies Development Fund Act 2015 came into effect exactly a year after the High Court on February 20, 2015 declared the former CDF Act unconstitutional.

In making the ruling, High Court judges Isaac Lenaola, David Majanja and Mumbi Ngugi upheld a petition by a lobby group, Institute for Social Accountability and Centre for Enhancing Democracy and Good Governance, challenging the constitutionality of the CDF Amendment Act of 2013.

Ruling on the matter on February 20, 2015, the three-judge bench granted the government a 12-month grace period to make the necessary amendments and align the fund with the 2010 Constitution. The grace period ended on Friday midnight.

The petition had, among other issues, argued that the former CDF Act was creating a third level of government in contravention of the principles of public finance that recognise division of revenue between the national and county levels.

The petitioners had also argued that the former Act violated the Constitution to the extent that MPs, who are supposed to oversee the Executive, were performing dual functions of being an extension of the Executive by virtue of being members of their respective CDF committees as well as oversighting.

Thirdly, the former Act was found unconstitutional as it violated the division of functions between the national and county governments by allowing the Fund to duplicate devolved functions like setting up of health centres, building of certain categories of roads, implementing water projects and constructing markets.

STIPULATIONS

CDF acting CEO Yusuf Mbuno urged the public to acquaint themselves with the new Act so that they know where to direct their priorities.

“The National Government CDF board will no longer be supporting functions that the Constitution devolved. The public should be sensitised about it,” he told Sunday Nation.

Section 22 of the new Act provides that the Fund will only support projects in respect of national government functions, leaving devolved functions to county governments.

According to the NGCDF Act, funding shall be for a complete project or a defined phase of a project and may include acquisition of land and buildings.

“Projects may include the acquisition of vehicles, machinery and other equipment for the constituency. Sport activities shall be considered as development projects for purposes of this Act, but shall exclude cash awards, provided that the allocation to such activities does not exceed two per centum of the total allocation of the constituency in that financial year."

The Act also allows for monitoring and evaluation of ongoing CDF projects and capacity building of various operatives to be undertaken.

But resources allocated to monitoring and evaluation and capacity building will not be more than three per cent of the annual allocation per constituency.

Environmental activities will also be limited to two per cent of the funds while allocation for office administration will not be more than six per cent.

The Act also limits the number of projects to be undertaken to 25 every financial year, mitigating against projects that are left unfinished.

Even as the new Act takes effect, regulations that define the nitty-gritty are still with Attorney-General Githu Muigai, who has to ensure they conform to the Constitution and the parent Act.