MPs’ Plan to Retain CDF Billions Despite Supreme Court Ruling

MARTIN SIELEAug 22, 20221 Mins read1.5k

The CDF Act is the basis for the distribution of billions of shillings for development initiated at the constituency level. [Photo/ NG-CDF Samburu North]

Members of Parliament (MPs) in Kenya have no plans of letting go of the Constituency Development Fund (CDF) kitty despite the recent Supreme Court ruling that deemed the CDF Act, 2013 unconstitutional. Each of the 290 constituencies in Kenya receive at least Ksh137 million every year from the kitty.

The apex court had ruled on August 8 that the CDF Act violated the Constitutional principle on division of revenue. It also found that it offends the division of functions between national and county governments. The court further ruled that the Act offends the Constitutional principle on separation of powers as well as Constitutional principles on Public Finance.

The lawmakers, however, are counting on the continued operation of CDF. They argue that the Supreme Court annulled the Constituencies Development Fund (CDF) Act, 2013 and not the NG-CDF Act, 2015. They maintain that the NG-CDF Act, 2015 took into account various issues raised by the courts.

The NG-CDF Act, 2015 itself faces a legal challenge with lobby groups challenging its constitutionality as well. A three-judge High Court bench is set to give directions on the case in September.

The ruling will likely open a new battlefront as MPs fight to keep the CDF kitty in place.

The legal challenge against the CDF Act 2013 was led by The Institute of Good Governance (Tisa) and the Centre for Enhancing Democracy and Good Governance. The lobby groups have maintained that they are not disregarding the initiatives supported by CDF such as bursaries for needy students or construction of classrooms, but rather highlighting the unconstitutional nature of CDF as it violates several principles enshrined in the 2010 Constitution.

The CDF Act, 2013 was first declared unconstitutional in 2015. The National Assembly, however, appealed the case. The Court of Appeal gave the National Assembly 12 months to align the Act with the Constitution as a three-judge bench agreed with the High Court.

In response to the Court of Appeal decision, Parliament amended the Act and renamed it NG-CDF denoting the National Government in the prefix. Tisa in May 2016 moved back to the High Court to challenge the constitutionality of the new NG-CDF.