The battle to wrestle the Constituency Development Fund from the control of legislators is set for a new phase as MPs plot a new strategy to defeat the court order.
A bench of five judges led by Chief Justice Martha Koome this month ruled that the CDF Act, 2013 violates the principle of separation of powers, hence is unconstitutional.
This came as a major win for critics, who have come together under a group of NGOs led by The Institute for Social Accountability (Tisa).
But newly elected MPs have already dismissed the significance of the Supreme Court ruling on grounds that the current fund is being implemented under a new law--National Government Constituency Development Fund (NG-CDF)--and not the one that was declared unconstitutional.
However, the fight is far from being won since even the NG-CDF has been challenged in court and the direction of this case will be known next month when a three-judge bench of the High Court gives directions on a fresh case contesting the passage of the NG-CDF Act, 2015.
Each constituency receives at least Sh137 million every year and the legislators have used the kitty for community development projects.
Tisa has been fighting the CDF since May 2016 on grounds that it infringes on the doctrine of separation of powers since by administering the CDF, legislators would be doing the job of the executive.
“We filed another case after Parliament changed the prefix by adding NG to the CDF Act which the High Court had declared unconstitutional. The case is coming for directions on September 24, 22,” Lempaa Suyianka, who is representing Tisa and Katiba Institute in the case told the Business Daily.
The CDF Act, 2013 was first declared unconstitutional in 2015 but Parliament appealed the case.
Three judges of the Court of Appeal agreed with the High Court's findings that the CDF was not in line with the Constitution and gave the National Assembly 12 months to align it with the supreme law.
Parliament then amended the Act and renamed it NG-CDF in a bid to comply with the Appeal Court ruling.
Tisa moved to the High Court in May 2016 to challenge the legality of the new NG-CDF arguing it is unconstitutional.
MPs who spoke to the Business Daily maintain that the NG-CDF is here to stay, arguing that the Supreme Court annulled the Constituencies Development Fund Act, 2013 and not the NG-CDF Act, 2015.
The lawmakers said whereas they are aware of a pending court case challenging the NG-CDF Act, 2015, no orders are stopping the disbursements.
“Why are people making noise about a ruling on a 2013 CDF Act? We amended the law in 2015 to NG-CDF which took into account concerns that had been raised by the court,” Kikuyu MP Kimani Ichung’wah said.
The former Budget and Appropriations Committee (BAC) chairman said there should be no course for alarm because the current NG-CDF Act has not been annulled.
“There is no order against the NG-CDF Act of 2015. We know that there is another court case and we (Parliament) are defending it. We will respect the outcome of the case,” Mr Ichung’wah said.
Mr Suyianka said between 2017 and this year, the fund has been operating under two legal regimes, the CDF and the NG-CDF Acts.
“The architecture of the CDF and NG-CDF are entirely the same. CDF is now unconstitutional as per the Supreme Court judgment of August 8. We are now left with the NG-CDF case whose direction for an expanded bench of five will be made next month,” Mr Suyinka said.
The advocate said the case is not questioning the nobility of CDF in terms of providing bursaries and classrooms but it violates the doctrine of separation of powers, infringes on revenue sharing formula between the national and county governments and lacks oversight.