Kenya News

Supreme Court declares CDF unconstitutional

The Supreme Court of Kenya on Monday, August 8, declared the Constituency Development Fund (CDF) illegal and unconstitutional.

In a judgment delivered by Chief Justice Martha Koome, the apex court ruled that the CDF Act 2013 that allowed Members of Parliament to manage funds offended the division of the revenue and public finance law.

The ruling quashed the Court of Appeal’s decision that had initially allowed the enactment of the CDF Act 2013.

CDF was established in 2003 (CDF Act 2003) to enable the government to set aside at least 2.5 percent of its ordinary revenue and channel it towards the Fund.

This was amended in 2007, to establish the National Government  CDF Boards (NG-CDF)at the constituency level to replace the National Committee.

Under the amendment, CDF Committees were established with respective MPs being tasked as the patrons. The CDF Act 2013, however, repealed the 2007 Act, essentially giving powers to MPs an avenue to implement projects funded by the public.

Each constituency receives at least Sh100 million every year and the legislators have used the kitty for community development projects.

“A fund directed at service delivery mandate can only be constitutionally complaint if structured in a manner that does not entangle members of Legislative bodies and Legislative bodies in the discharge of the service delivery mandate however symbolic,” the judges including Justice Koome, Deputy Chief Justice Philomena Mwilu, Smokin Wanjala, Njoki Ndung’u and William Ouko said.

The top court judges said such funds ought to be integrated and subsumed within the structures of either the county executive or the national executive.

Two non-governmental organizations, the Institute for Social Accountability (TISA) and the Centre for Enhancing Democracy and Good Governance (CEDGG) moved to the Supreme Court arguing that CDF is unconstitutional as MPs are involved in implementing tax-payer-funded projects, which is a preserve of the executive arm of government.

While overturning the decision in 2017, appellate court judges said 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 government and interfere with the 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.

In the second appeal, MPs argued that the appeals had been rendered moot following the repeal of the CDF Act 2013 and the enactment of the National Government Constituency Development Fund in 2015.

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