MPs' dance with courts on CDF last kick of a dying horse

This week the High Court for the second time declared the CDF Act unconstitutional.

It goes to the ingenuity of Parliamentarians that this unconstitutionality was on a later version of the CDF Act, cleverly renamed National Government CDF, the 2013 version having been declared unconstitutional by the High Court, the Court of Appeal and finally by the Supreme Court in 2022.

Why I say ingenious is that before the Courts concluded the first set of cases, Parliament had already amended the 2013 Act and was even arguing that the court should halt the proceedings since the Act before the court had already been repealed!

Both the Court of Appeal and the Supreme Court would have none of that and insisted that despite the technical repeal of the previous Act, the substantive issues that had brought the Act before the courts were still alive in the amended law!

But by then Parliament was using the new Act to continue the CDF process. This time Parliamentarians had cleverly disguised their role and appeared to be uninvolved with the management of the Fund.

The indefatigable Wanjiru Gikonyo had to start the journey of impugning the Act, the 2015 version all over again. But this time the courts have declared all versions, including the latest one passed in 2023 unconstitutional. It will be interesting to see Parliament’s new tricks; this is one issue Parliament considers a red line.

Until the introduction of a devolved system, CDF was one of the most popular decentralisation processes, introduced by government on the encouragement of the World Bank and IMF to blunt some of the more painful impacts of the Structural Adjustment Programmes.

When introduced in 2003, it was the first time that money was allocated to Kenya based on statutory rule unlike the historical politics-based “siasa mbaya, maisha mbaya” allocations.

Though it was still a small fraction of the national budget, it was the first time parts of this country had seen evidence of government in development programmes, however micro.

It thus became popular with people but even more popular with MPs who no longer had to foot all their constituency bills from their pockets, now they could promise a bursary here, a graded road here and some microwater project there.

It also became popular with the Executive; ministers were no longer the sole source of resources for MPs. But with the coming of devolution and the assignment of local development to county governments, CDF started its long journey to the grave. But MPs are addicted to CDF and like all addictions, it will not go away easily.

Parliamentarians will innovate ways to keep it alive. The challenge for MPs is the portion that makes it most attractive to them, which is their latent control of its operations, is what the courts find offensive. So, they are caught in catch 22 situation, to keep CDF they would have to remove from the Act the only reasons why they keep CDF!

But ultimately CDF will have to go. It offends the devolved system of government, confusing the function assignment process and even taking over functions that belong to county governments.

It offends the separation of powers by making MPs executors and "oversighters.” It keeps MPs distracted from the most critical part of their functions, legislation and oversight over the Executive.

It indirectly makes constituencies another level of government for development purposes, while they constitutionally exist as political unit for representation. It has increased the clamour for all sorts of funds from legislators, Oversight Funds by the Senate, Affirmative Action Funds for Women Representatives and Ward Funds for MCAs.

All these funds have the same deficiencies CDF has only that they have not been challenged due to their minute sizes. At some point we will need to accept that we devolved and that this has consequences.

Any leader who wants to play an executive role should seek an executive role at either level of government.

They should allow those who want to be legislators only to go to Parliament. This dance with the courts is the kicks of a dying horse, it will go on for a while but the horse will give up the ghost sooner than later.

-The writer is an advocate