Develop legal mechanism for sending CDF billions to serve the counties

In simple language, the court ruling on the Constituency Development Fund recently said the 2013 Act which established this institution as we know it today is unconstitutional. Try as we may as law makers, we cannot get around this ruling: we have to abide by it.

The court did not, however, say that the CDF has been useless; nor that the good work the Fund has done should be discarded. On the contrary, the judges in their ruling appreciated this good work and went further to state that in the spirit of devolution the work should be carried out constitutionally. It therefore behooves us, as lawmakers, to establish a legal and constitutional framework how this should be done. Here is my proposal.

Articles 93-96 of the Constitution establish the functions of Parliament, both the Senate and the National Assembly. Article 93(2) says very specifically that the “National Assembly and the Senate shall perform their respective functions in accordance with this Constitution.” These functions are further elaborated on in Articles 94 to 96. Apart from the functions of representation, law making and appropriation/allocation of national revenue, the two houses are charged with the functions of oversight over national revenue and expenditure (Article 95(4c) in the case of National Assembly); likewise oversight over State organs (Article 95(5c) ). The oversight function of the Senate is very clearly stated in Article 96(3). It states: “The Senate determines the allocation of national revenue among counties, as provided in Article 217, and exercises oversight over national revenue allocated to the county governments.”

Now, the concept “oversight” has been variously misunderstood. It is not, and cannot be, confined simply to examining accounts of both the national and county governments. It means constantly and continuously keeping abreast with how both the national and county governments use public funds, manages public affairs and ensures good governance in the country. As such there needs to be institutional mechanisms by which the two houses do so both at the national and county levels.

In this regard, money currently voted at the national level as CDF can still be voted to county governments as conditional grants to be used for social development at the sub-county/constituency level. Constituency Development and Oversight Committees in which all elected leaders sit could then be established to ensure that these funds work well. These committees could then be chaired by the Member of Parliament as the chief oversight officer at that level. Residents of the sub-county would then submit their project preferences to this committee to be passed over to the county government for review within the context of the County Development Plan, revenue allocation and implementation. The committee would then undertake the oversight of implementation projects precisely because they are familiar with them from conception to birth. The present system where the county governments go around markets collecting public views on its development proposal is both inefficient and ineffective.

Likewise, as the Senate had already proposed—much to the chagrin and resentment by persons who deliberately chose to misunderstand the proposal—a County Development and Co-Ordination Board should be established. This board will likewise bring together elected leaders at the county level as the current Act envisages. Since the Constitution already clearly states the Senate’s oversight role, it goes without saying that it is necessary that it ensures proper coordination and accountability in implementing all projects by the two levels of government in respective counties. On the spot inspection, data gathering, monitoring and evaluation would then be the content of oversight, and not mere auditing of reports after the fact.

Article 127 establishes the Parliamentary Service Commission and states its functions. In sub-article (6)(a) it states as follows:

“The Commission is responsible for (a) providing services and facilities to ensure efficient and effective functioning of Parliament.”

Let me submit that this is the area where the PSC has recorded a near total failure at both the county and constituency levels. It is neither the duty nor the responsibility of the national government to ensure that MPs do their oversight functions efficiently and effectively at the grassroots: it is the PSC to do so. I do not see how, for example, I would be able to answer any questions from my voters in Nyakach about the ratio of pupils to teachers in their schools and the adverse effects this has on their education if I don’t go there, if I don’t acquaint myself with the necessary data and if I have no idea whether or not they have PTAs. What about the adequate resources they need to get to have good education? And when they are given resources and they misuse it, is it enough for the Director of Budget just to deny them anymore?

We have a lot of work to do, and we need adequate finance and infrastructure to fulfill our oversight functions. Engaging in implementing development projects goes beyond our constitutional mandate, and raises legitimate issues of conflict of interests and roles. But once we fully open this door which is currently partially shut, we shall find our trays full with pending work. Old habits, of course, die hard; and we may feel painful withdrawal syndromes in the process.

In the meantime, let me warn our ambassadors abroad, especially in London and New York. It is important that you represent Kenyans as well as the incumbent government. Incumbents, as their name suggests, come and go; the people of Kenya are here to stay. Of late your pronouncements on Parliament have not been very wise, nor do they depict the impartiality that you should exercise between the two sides of Parliament: the government and the opposition. Your penchant against the leader of the Opposition and his co-principles betrays your role in planning to rig the next elections through diaspora votes.

Don’t take Kenyans through yet another anguishing decade.

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CDF