The courts have spoken: No way back for CDF without Constitution breach

By LEMPAA SUYIANKA

Members of Parliament are sparing no effort to keep the stranglehold on the National Government-Constituency Development Fund (NG-CDF).

The fund enables them to control resources outside their constitutional mandate of legislation, representation and oversight.

In trying to entrench the fund in the Constitution, the MPs hope to keep the courts out of any challenge to the fund that they so much love.

Yet the cases that have challenged the fund in court have never challenged the nobility of the fund.

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The issue has been with the process of enacting the law that creates the fund, the management of the fund, duplication of the roles of the national and county governments, violation of division of functions between the two levels of government, lack of oversight mechanism of the fund and separation of powers.

With both High Court and the Supreme Court concurring that all these constitutional principles have been violated, it will be a Herculean task for the National Assembly to amend the Constitution to have the fund entrenched.

In a nutshell, no amount of legislative manoeuvres will entrench the fund into the Constitution without further undermining the constitutional principles and structures.

The proposal by Gichugu MP Gichimu Githinji and his Matungulu counterpart, Stephen Mule, to have NG-CDF, National Government Affirmative Action Fund (NGAAF) and Economic Stimulus and Empowerment Fund anchored in the law is a red herring, an exercise in a wild goose chase and hot air, to borrow the words of the Supreme Court.

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It would require a total overhaul of some chapters of the Constitution.

One of the greatest challenges is the violation of the separation of powers.

The Supreme Court held that involvement in development activities at the county level by members of the National Assembly not only threatens to undermine the functions of the government at the county level but also blurs the executive and legislative divide that underlies the principle of separation of powers.

The writer is an advocate of the High Court of Kenya.