MPs fight to retain CDF raises more questions than answers

Parliament Session on February 11 2025. [Elvis Ogina, Standard]

That MPs will not give up on reviving the Constituencies Development Fund (CDF) is clear from the publication early this month of the Constitution of Kenya (Amendment) Bill 2025. The Bill seeks to constitutionalise the National Government Constituencies Development Fund, the Senate Oversight Fund and the Affirmative Action Fund.

I believe the latter two were included to earn support of women MPs and Senators in the amendment journey as passage of the Bill requires the support of two thirds of the members of each House.

This proposed amendment follows a beaten path by the National Assembly which has repeatedly lost the CDF battles in court and proceeded to revive the Fund in different formats each time the courts declare it unconstitutional.

The idea of the Amendment Bill is to shield the Fund from any claims of unconstitutionality. When it was introduced in 2003 as private member’s Bill by Ol Kalau MP Muriuki Karue, the Fund was welcomed as a part of the NARC package of reforms seeking to ensure more equitable distribution of national resources.

Until then, whether the funding was centralised, through ministries, or decentralised, for instance through the District Focus for Rural Development programmes, resources were managed on the basis of political partisanship.  

“Siasa mbaya, Maisha mbaya.” The CDF was however an equitable fund, granting almost similar allocations to all constituencies irrespective of their politics.

Even at that early stage, critics felt that MPs had an overbearing presence in the Fund leading to its over-politicisation at the local level. There was however no constitutional basis on which it could be challenged.

Upon promulgation of the 2010 Constitution, the CDF had two primary challenges. The first challenge was failure to align its mandate with new assignment of functions under the Constitution between the national government, of which it was a part, and those of county governments. Until it was amended in 2015, clearly to defeat this claim, the Fund was engaged in projects that stranded the functions of the two levels of government.

The 2015 amendment removed this challenge by limiting the projects the Fund could finance to those relating to the national government functions. The more difficult challenge, which MPs have been unable to full resolve, has to do with the involvement of MPs in management of the Fund which critics consider an affront to the separation of powers doctrine.

It is clear that constitutionally, MPs have no role in the execution of programmes in the manner set out in successive versions of the Act. This is the work of the Executive at the national and county levels.

In CDF’s 2003 version, the role of the MP was open, direct and unqualified. It was the MPs who chose the CDF constituency teams, decided on priority projects and allocated monies to projects.

In later versions of the CDF, there were attempts to cover this obvious involvement, including bringing the constituency teams for approval by the National Assembly. No prizes for guessing how this process was managed by MPs once it got to the House!

Whichever clever design is implemented to conceal their involvement, what is undoubted, and this is repeated in debates on the floor of the House, is that this is a Fund for management by MPs in every respect. This is indeed the reason why the Fund is popular with MPs and yet is the very reason it runs afoul of the law.

Is the latest attempt to cure its defects through constitutionalisation the remedy? Can a process judged as an affront to the Constitution be cured by bringing the same clause into the same Constitution? Can a constitutional provision, assuming it is procedurally passed, be unconstitutional?

The Supreme Court in the BBI case rejected the attempt to extend the basic structure doctrine beyond Article 255, which requires referenda for amendments on prescribed matters.

Had the doctrine been fully adopted, the amendments sought by MPs may have been deemed unconstitutional for offending the basic structure. This decision notwithstanding, the issue remains whether an amendment that contradicts existing key constitutional principles can be constitutional.

Fasten your seatbelts and await another tantalising judicial battle on this programme, which MPs have consistently sworn they will retain, whatever it takes.

-The writer is an advocate of the High Court