Why MPs' bid to entrench CDF in Constitution will flop badly

Despite all the efforts to align it to the Constitution, CDF is no longer at ease, having been declared unconstitutional by the highest court in the land. This has forced MPs to change tact by trying to amend the Constitution to give it a constitutional foundation.

By trying to entrench the fund in the Constitution, the MPs are trying to keep out any court challenge to the fund that they so much love. But why do MPs love this fund so much? The reasons are not very far to seek. First each constituency is given Sh100 million every financial year. Therefore, an MP is able to control Sh0.5 billion in five years.

At the constituency level, there is the CDF committee with the MP being the Committee patron which gives him or her power to decide the priority of projects, including bursary. Besides being the patrons, MPs who sits in that committee.

Chapter 12 of the Constitution establishes a detailed formula for the equitable sharing of revenue between national and county governments. CDF was a noble idea, but with devolution, the centre cannot hold without seriously undermining the constitutional architecture.

Those who have challenged the fund in court have never challenged the nobility of the fund. They have challenged the process of enacting the law that creates the fund, the management of the fund, duplication of the roles of the national and county governments, violation of division of functions between the two levels of government, lack of oversight mechanism of the fund and separation of powers.

With both High Court and Supreme Court concurring that these constitutional principles were violated, it will be a herculean task for the National Assembly to amend the Constitution to entrench the fund.

In a nutshell, no amount of legislative genius will entrench the funds into the Constitution without further undermining the constitutional principles and structures.

The proposal by Gichugu MP Gichimu Githinji and his Matungulu counterpart Stephen Mule to have (NG-CDF), National Government Affirmative Action Fund and Economic Stimulus and Empowerment fund anchored in the law is a red herring, a wild goose chase and hot air, to borrow the words of the Supreme Court. Anchorage of CDF to the Constitution will require total overhaul of some chapters of the Constitution

One of the greatest challenges is violation of separation of powers. The Supreme Court held that involvement in development activities at the county level by MPs not only threatens to undermine the functions of the government at the county level, but also blurs the Executive and legislative divide that underlies the principle of separation of powers.

The Constitution does not have an express provision on the doctrine of separation of powers. Separation of powers is a constitutional foundation that is gleaned from the structures and institutions created by the Constitution and how to cure its violation is not easy as you have to consider all the structures and institutions.

There are those who believe that CDF or NGCDF is well managed and fear that the noble work it has done since 2003 will disappear. These fears are unfounded and well addressed by both the High Court and the Supreme Court.

The courts have advised both Parliament and the Executive: "There are available means through which the national government can permeate its agenda into counties within the purview of the Constitution. For instance, through conditional grants to county governments. The national government could also assign or transfer its functions to the county governments if it so desires within the terms set out under Articles 186(3) and 187 of the Constitution. The structure of such grants could be tailored to meet specific need in constituencies''.

Mr Lempaa is an advocate of the High Court