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CDF is unconstitutional: Supreme Court declares

Chief Justice Martha Koome
Supreme court found that the law allowing MPs to manage funds offends division of revenue and public finance law.

The Supreme Court has declared the Constituency Development Fund illegal and unconstitutional.

In a landmark ruling delivered by Chief Justice Martha Koome, the CDF Act has been declared illegal and unconstitutional. According to the Supreme Court, the CDF Act of 2013 was not passed procedurally and the appeal made was subject to debate.

“A declaration is hereby made that the Constituency Development Fund Act, 2013 is unconstitutional. Having fully considered all the issues delineated by this court for determination we find as follows; The appeal made before this court was not moot and the CDF Act of 2013 as amended by the CDF is unconstitutional on the account of procedural lapses for failing to involve the Senate in its enactment,” the ruling read

This brings to the end a nine-year court battle between the Members of Parliament and civil society groups.

In its verdict this morning, the country’s highest court found that the law allowing MPs to manage funds offends division of revenue and public finance law.

They have sealed the fate of the National Government Constituency Development Fund (NGCDF) ruling that the Act, which was enacted in 2013 and changed in 2015, is unconstitutional.

According to five bench judges led by Chief Justice Martha Koome, ruled that the CDF Act violates the principle of separation of powers, and hence is unconstitutional.

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.

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

Earlier the High Court had declared the Act unconstitutional in 2015 but Parliamentarians moved to the Court of Appeal and successfully had the decision reversed.

The appellate court only declared some sections of the Act unconstitutional. Two non-governmental organisations, 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.

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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 cite that 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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