Lawyers join fight against CDF as Sh2bn disbursed

The Law Society of Kenya (LSK) is seeking to join a petition challenging the legality of the National Government Constituency Development Fund (NG-CDF) Act 2015, hours after Treasury disbursed the first batch to constituencies.

MPs said Sh7 million was released to the 290 constituencies from the controversial NG-CDF kitty and schools had confirmed receipt of the same. This was the first tranche after the Attorney General wrote to the Treasury seeking disbursement of the funds following a stalemate between the courts and Parliament over administration of the billions.

LSK President Eric Theuri criticised the courts for not fast-tracking hearing of the petition and the Treasury for not waiting until there was clarity on the legality of the kitty. "We intend to follow up the matter in court. We will join that petition to have this matter expedited," said Theuri. He said the petition was initially being heard by a three-judge bench but after one pulled out, the matter was taken back to Chief Justice Martha Koome for reconstitution. "The disbursement of the funds in the environment in which the court has already pronounced itself and while there's a pending petition is an embarrassment to the court," said Theuri.

"It would have been wiser to fast-track the hearing of the petition against the current 2015 Act so that the country is clear on whether the funds can be disbursed legally or otherwise," he added.
MPs were, however, in support of the release of funds saying it was a welcome relief to parents heading into a new school year. Navakholo MP Emmanuel Wangwe said: "I have just checked with my fund manager and I can confirm the amount was disbursed on December 30."

Sabatia MP Clement Sloya also said the move would save parents a lot of headache. "These monies will help our children go to school and help them sort out fee issues as the year begins," said Sloya.

His Kesses counterpart Julius Ruto added: "The amount disbursed is Sh7 million per constituency. Sh5 million will go towards bursaries while the remainder is channelled towards administrative issues."
The development comes amid a push by the august House to amend the Constitution to anchor the annulled NG-CDF into law.

MPs have also proposed radical changes to ensure the Senate Oversight Fund, National Government Affirmative Action Fund, and Economic Stimulus and Empowerment Fund are fully entrenched in law.

It also seeks to increase the NG-CDF kitty to at least five per cent of the national revenue. The law currently sets aside 2.5 per cent of the total revenue raised nationally to be shared among the 290 constituencies which is sh44 billion.

In December 2022, Treasury CS Njuguna Ndungu wrote to Parliament communicating intent to disburse the funds after getting the go-ahead from the Attorney General.

In his communication read by National Assembly Speaker Moses Wetang'ula, Njuguna revealed that he would be making weekly disbursements of Sh2 billion to the NG-CDF kitty.

The issue of the legality of the NG-CDF kitty began after the Supreme Court declared the CDF Act 2013 illegal noting that it offends the division of functions between national and county governments to allow CDF, an instrumentality of the national government, to undertake functions devolved to the counties.

But after the appointment of a new Treasury CS Njuguna Ndungu, he sought legal opinion from Attorney General Justin Muturi on the implications of the court order on the ruling the disbursement of the kitty.