Battle over legality of CDF moves to the Supreme Court

The Supreme Court of Kenya building in Nairobi.  FILE PHOTO | NMG
The Supreme Court of Kenya building in Nairobi. FILE PHOTO | NMG 

The battle over legality of the Constituency Development Fund (CDF) has moved to the Supreme Court, which is now set to have the final say on the kitty that Members of Parliament use to wield influence on community development projects.

The move to the apex court marks yet another significant step in a protracted quest by two non-governmental organisations to have the fund declared illegal.

The Court of Appeal last month overturned a 2015 High Court judgment that had declared CDF unconstitutional.

The Institute for Social Accountability (TISA) and the Centre for Enhancing Democracy and Good Governance (CEDGG) have argued that CDF is unconstitutional in that MPs are involved in implementing tax-payer funded projects, which is a preserve of the executive arm of government.

The kitty, which has since been renamed the National Government Constituency Development Fund (NGCDF) has been a political lifeline for MPs at the grassroots.

“The judgment and orders of the Court of Appeal…dated 24th November 2017 be overturned save for the declaration that Sections 24(3)(c) and (f) and 37(1) (a) of the Constituencies Development Fund Act, 2013 violates the principle of separation of powers,” reads the application filed at the Supreme Court.

The lobby groups claim that Court of Appeal judges failed to appreciate that, in effect, the CDF Act introduced a third entity to compete for financial resources with the national and county governments effectively and unconstitutionally introducing a third-tier of devolution.

They claim in the appeal filed at the Supreme Court that Court of Appeal judges failed to find that the CDF Act 2013, through the language it employed, enabled the national government to encroach upon the constitutional functions of the county governments.

They want the finding of Appeal court to be overturned and the High Court judgment upheld. The High Court had in 2015 also found that the Constitution had been violated by failure to involve the Senate when the law was amended in 2013.

But on this point, the Appeal court found that the High Court usurped the role of Legislature when it found CDF Bill as a Bill that concerns county governments since the Speakers of the Senate and the National Assembly had already resolved that it was not classified as such.

The High Court judges had also said the Act threatens to upset the division of functions between the national and county levels of governments and interfere with county government’s autonomy.

The Court of Appeal judges, however, held that the petition raised hypothetical questions since neither county nor national governments had raised any dispute.

The High Court judges despite far-reaching findings magnanimously allowed lawmakers to correct the defective legislation within 12 months.

The Court of Appeal further held that the High Court erred when it found that the CDF fund ought to have been in the form of a grant as conditional revenue to county governments or through existing county government structures.

The court also held that it was improbable that CDF would interfere with county governments’ planning or autonomy. The appointment of Members of Parliament to perform purely executive duties of enforcing the CDF Act, 2013, was found contrary to the principle of separation of powers and of the national values and governance.