As the National Assembly resumes on Tuesday, one of its first agenda is an amendment of the Constitution to entrench the Constituency Development Fund (CDF) into the country’s supreme law.
This comes just a month to the much-awaited judgment at the High Court, which will decide the fate of the CDF. The High Court had already termed the Fund illegal and ordered it scrapped. The MPs have come up with the Bill as a kind of back-pocket insurance to the kitty that allows them to initiate and implement projects in their respective constituencies.
The Constitution of Kenya (Amendment) Bill 2017 has already been published and is set to be introduced to the House to begin the minimum 180-day legislative cycle that an amendment to the Constitution has to endure in both Houses of Parliament.
In the changes, the MPs want a new Article 206A to be introduced, setting aside 2.5 per cent of the national government revenues for a special fund after the national government and the 47 counties have shared their portions as prescribed in the Division of Revenue Act.
Recognise the constituency
The CDF has been in existence for the past 13 years, and according to latest government data, which The Standard on Sunday has seen, it has gobbled up at least Sh242.9 billion, which has been pumped into over 206,231 projects across the country. It has gone to build roads, schools, classrooms, police stations, dispensaries and stadia and bursaries for students in primary and secondary schools and universities.
The constitutional amendment is the brainchild of Bumula MP Boniface Otsiula. He says part of the reasons for the Fund is to “recognise the constituency as a platform for identification, performance and implementation of national government functions”.
“Since its inception, it has been manifestly self-evident that the National Government Constituencies Development Fund has facilitated life-changing community development and empowerment projects in the fields of education, health, security, roads and provision of clean water to the people,” Otsiula noted in the memo of the Bill.
The legislative masterstroke in the amendment is a move to rope in senators and the 47 women who represent counties by creating a special fund for senators and another for women representatives, all to be entrenched in the Constitution.
The idea here is to easily raise the two-thirds threshold – 233 votes in the National Assembly and 45 in the Senate – required for Parliament to approve an amendment to the Constitution.
The Bill proposes a new Article 208A to set up a National Government Affirmative Action Fund targeting the 47 women reps and a new Article 208B setting up the Parliamentary Oversight Fund, which not only targets senators, but also nominated MPs who hitherto have no kitty.
Unlike the hard percentage that MPs have set aside for CDF, they have left it to the discretion of the National Assembly to allocate the money to the two funds every year when they make the budget.
They say Parliamentary Oversight Fund will “provide facilitation to senators to enable them exercise oversight over national government revenue allocated to the county governments; provide facilitation to senators to enable them safeguard devolution; and provide facilitation to members of the National Assembly to enable them exercise oversight over national revenue and expenditure”.
In a bicameral Parliament where the senators, the women reps and the nominated MPs hated their elected colleagues because they controlled an average of Sh119 million per constituency every year, the structure of the amendments is a sure-fire way to ensure that the Bill goes through with massive support.
Hoops to jump through
But Otsiula and his colleagues in the CDF and the Justice and Legal Affairs committees and even the Budget and Appropriations Committee, who went through the Bill, will have legislative hoops to jump through.
First, they have just seven months in the House because their term expires on August 8, 2017, the date of the next General Election. To approve a Constitution amendment, it requires a minimum of 90 days in the National Assembly and 90 days in the Senate in between the First Reading (introduction of the Bill in the House) and the Second Reading (Debate).
This means that the earliest the National Assembly can approve the Bill is late April or early May; then the Senate will have until late July to approve the same Bill.
The second problem is quorum. The Constitution says “a Bill to amend this Constitution shall have been passed by Parliament when each House of Parliament has passed the Bill, in both its second and third readings, by not less than two-thirds of all the members of that House.”
The quorum problem for the MPs is that from April to August, the campaigns for the next elections will be in high gear and it will be difficult to raise the two-thirds majority threshold required.
“It really is upon the MPs to decide; Do they come back and set aside money for themselves with the hope that they will be re-elected, or do they stay on the campaign trail and sabotage the Bill, so as not to give their competitors a soft landing should they (current MPs) be defeated,” said a lawyer, who asked not to be named because he is involved in the pending CDF case at the High Court.
In the life of the 11th Parliament, it has been difficult to raise the minimum quorum to amend the Constitution. They have always lobbied through their parliamentary groups, but even so, they barely meet the threshold.
None of the eight attempts to amend the Constitution has gone through the two Houses of Parliament. Two have gone through the National Assembly, but are, for now, stuck at the Senate. One failed to go through the National Assembly, and five are still in the pipeline.
Now, back to the legislative hoops. Even if the MPs agree and approve the Bill in both Houses and their respective Speaker’s submit the Bill to President Uhuru Kenyatta for assent, the President will have up to 30 days to make a decision.
“The President shall assent to the Bill and cause it to be published within thirty days after the Bill is enacted by Parliament,” reads the Constitution.
In that time, if the President doesn’t sign the Bill, the term of Parliament will lapse and so will the unassented Bills.
In August, the MPs will be fighting for their political survival and it is unlikely that they will have the legislative unity to push the President to sign the Bill.
The argument against the Bill is that for devolution to succeed, MPs should agree with what the High Court said; either projects are implemented by the national government or the county governments.
“An ultimate and final answer needs to be given to the question whether Members of Parliament can get involved either directly or indirectly with the NGCDF outside the precincts of Parliament. An ultimate answer also needs to be given to the question whether a constituency can be a platform for identification, performance and implementation of national government functions, especially development programmes.
“Those questions in my view should be able to resolve whether or not the constituency development funds, by whatever name, should actually survive the current constitutional framework,” Justice Joseph Onguto said.
In a new dispensation, MPs, being members of the legislature, would have no reason to hang onto implementation of the projects.
“Even a cursory reading of the Article 202 of the Constitution would reveal that the revenue should be shared equitably between the national and county governments. It appears no other entity is expected to share this revenue,” Justice Onguto ruled in July 2016.
Undermine devolution
“Even if it is a penny it ought not happen. To allow a small deduction today would amount to approval of a bigger deduction tomorrow. That may not only lead to uncertainty in revenue allocation but also undermine the spirit of devolution.”
On February 20, 2015, the a three-judge bench returned the verdict that the CDF Act was unconstitutional and invalid. The court, however, proceeded to suspend the order of invalidity for 12 months and directed the national government to remedy the now patented defects in the CDF Act within that period, or the CDF Act stood invalidated at the end of the 12-month window.
The national government acted and sponsored the NGCDF Bill, which was published on October 9, 2015.
On December 15, 2015, the NGCDF Act became law, but its commencement was suspended by the same statute to February 19, 2016. And six weeks later, a fresh petition was filed, seeking a declaratory prayer that the numerous provisions of the NGCDF Act that violate the Constitution cumulatively rendered the NGCDF Act constitutionally invalid.
