Constitutional amendments to save CDF expose MPs conflict of interest

The fight to save the National Government Constituency Development Fund (NG-CDF) seems to be far from over. The Constitutional (Amendment) Bill, 2025, that seeks to amend Article 204 of the Constitution to introduce three other funds has been published in Parliament.

The Bill seeks to introduce Articles 204(A) National Government Constituency Fund, 204(B) The Senate Oversight Fund, and 204(C) National Government Affirmative Action Fund.

The Bill has been curated to bypass offensive encroachments into devolution and sharing of revenues between the national and county governments contemplated in the Constitution. The High Court found the NG-CDF Act of 2015, with the accompanying amendments of 2022 and 2023 to be unconstitutional. The Supreme Court had determined similar constitutional breaches on the CDF Act of 2013.

While the legislators are looking for clever ways to protect their kitties, their actions betray their shadowy involvement and control of the funds. Curiously, the two legislators who have sponsored the Bill are senior and prominent legal minds in the country.

A layman, with a razor analytical eye on the two separate court rulings may be left wondering what happens to professionals when they join Parliament. However, what is of interest now is whether entrenching the three funds into the Constitution cures the offensive provisions in the Acts or introduces inconsistencies in the Constitution itself.

Right from the outset, this column takes the considered view that if the amendments proposed in the Bill are entertained, they shall cause material inconsistencies across the Articles that the courts found unconstitutional in the various Acts.

Besides, the big question that the legislators must tell the nation is whether the key provisions that the courts have found offensive in the Acts can be cured through a Constitutional amendment initiated by Parliament or they are at a threshold that must be subjected to a referendum.   

Key Offensives

For purposes of this analysis, I shall rely on the detailed summary of the rulings published in the Kenya Law Weekly Issues by the Kenya National Council for Legal Reporting. According to Issue No. 025/24-25 published on January 31 this year, the High Court found four constitutional breaches in all versions of the NG-CDF Act under dispute. These are that the Act undermined devolution by intruding into county functions, created inefficiencies through duplication, violated the doctrine of separation of powers and breached Articles 201 and 205 by failing to ensure prudent financial management and bypassing parliamentary oversight.

While several weighty issues were conversed by the court in its ruling, the Amendment Bill now before Parliament only skirts around the encroachment on devolved functions and clarifies the three funds shall be funded from the share of revenue for the national government.

This leaves open the questions on the roles of Parliament contemplated under Article 95, the fiscal responsibility and accountability thresholds envisioned under Articles 201 on public resource management, the governance standards and practice demanded under Article 10, the purpose of the constituency unit (political or service delivery) as contemplated under the Constitution, and the doctrine of separation of powers.

It is on the basis of this Constitutional breaches that the High Court declared that funding under the NG-CDF Act and all its associated programmes/activities shall cease on the stroke of Midnight June 30, 2026.

In a separate but similar ruling, the Supreme Court found the CDF Act of 2013 unconstitutional for the same issues on August 8, 2022. The findings of the five judge-bench constituting of Chief Justice M Koome, Deputy Chief Justice P Mwilu, Justices S Wanjala, S Ndungu and W Ouko appeared to have closed all doors for any fund under the shadows of any legislative body or a layer of government other than the national and county governments contemplated under Article 1(4) on the exercise of Sovereign power of the people.

According to the judges, any function of service delivery in the character and nature of community-based projects would be discharged under the executive structures by the appropriate level of government as contemplated by Article 1(3)(b). The court determined that a constituency as conceptualized in the Constitution was tied to political representation as a form of territorial districting that defined how voters were grouped for elections, and not conceptually envisioned to be a service delivery unit.

Further, the court determined that Article 201 expressed the idea of responsible governance involving prudent management of fiscal resources, implementation of projects aimed at service delivery being cost-effective, and embodied the desire for fiscal efficiency to eliminate wastages in service delivery.

On the doctrine of separation of powers, the court found this to be a fundamental principle of law for the three arms of government to remain separate, and that no one arm of government should usurp the functions belonging to another arm. Thus, Article 1(3) only delegated power vertically and horizontally to State organs namely: Parliament and legislative assemblies in the counties, national executive and executive structures in the county governments, and Judiciary and the independent tribunals.

As if to put a definitive final nail on the coffin of any fund tied to an electoral unit, the five justices concluded that Article 259(1)(a) and (d) of the Constitution should be interpreted in a manner that promoted its purposes, values and principles, and contributed to good governance. Therefore, any fund that operated outside the strictures of separation of powers and the system of checks and balances was not constrained given the absence of legislative oversight and was prone to abuse.

The court’s determination that under the Constitutional scheme on separation powers; Members of legislative bodies, being Members of the National Assembly, Senator, County Women Representatives and Members of County Assemblies ought not to be involved in the implementation of any service-based mandates which were the preserve of the executive branch, was mortal not only to the Act that was under dispute, but to any of her cousins in future.  

It is noteworthy that both the High Court and Supreme Court never disputed the beneficial aspects or popularity of the fund at the community level.

According to the Kenya Law Weekly of January 2025, time is ripe for the people of Kenya to appreciate that a constituency was not a service delivery unit but a representation one and that the role of legislators must remain that of representation, legislation and oversight as per Article 95.

From the foregoing, six themes must define the discourse on the Constitutional (Amendment) Bill 2025, during the period of public participation. These are the spirit of the Constitution, exercise of the sovereign power of the people, doctrine of separation of powers for good governance, desire for fiscal responsibility and avoidance of waste in management of public resources, role of legislators, and legislators shadows on any fund based on an electoral unit.

As things stand, it is already in bad faith that it is conflicted Members of Parliament pushing for this Constitutional amendments. While the Bill restricts allocations for the three funds only from the national government share of revenue, it remains vague on specifics other than limiting them to national government functions.

More fundamentally, how can Members of Parliament claim public glory in distributing bursaries and claiming projects under NG-CDF and yet at the same time deny control over the funds?