NG-CDF's fate sealed, time legislators kissed the fund goodbye

When Mombasa Governor then Mvita MP Abdulwasmad Nassir inspected two new new classrooms and a Social Hall under construction at Sharif Nassir Girls Secondary School in Mombasa on January 24, 2019. [File, Standard]

On rare occasions does this column address the same subject more than once? However, the events of this past week dictate that we revert to the Supreme Court ruling of August 8, 2022, about the National Government Constituency Development Fund (NG-CDF).

By deed of the apex court’s ruling on the unconstitutionality of the NG-CDF Act of 2013 and the amendments of 2016, any elected State officer was duly informed that there would be no service-based mandate funds for them. I wrote about this in one of my articles shortly after the dust on the elections was settled.

For context and to connect the dots with the High Court’s declaration last week that NG-CDF is unconstitutional this past week, we shall revisit the Supreme Court’s decision from two years ago.

Petition No 1 of 2018 which addressed the core object of the constitutionality of the NG-CDF Act of 2013 was heard and determined by a five-judge bench chaired by the Chief Justice Mother Koome. The other judges on the bench were Philomena Mwilu (Deputy Chief Justice), Smokin Wanjala, Njoki Ndung’u and William Ouko.

In a unanimous judgement, the bench declared the NG-CDF Act unconstitutional on four grounds. These include the NG-CDF Act 2013 offends; the division of functions between the national and county governments, the constitutional principles on division of revenues, the constitutional principles on public finance, and the constitutional principle of separation of powers.

Two other findings of the apex court are very critical for this argument. As if to pre-empty the stage-managed protest that we saw in Mumias East earlier this week and the reactions from members of the National Assembly, the judges weighed in on the arguments over what has been billed as the achievements of the fund.

In their concluding thoughts in paragraph 132, the judges had this to say: “The longevity of a practice does not cloak the practice with constitutional legitimacy. It is when the courts pronounce themselves on the constitutionality of a legislation or a conduct that their constitutionality can be established”.

According to the apex court therefore, the fact that CDF has been in operation since 2003 is not good enough to answer on the constitutionality of the fund in the post-2010 constitutional dispensation.

The other mortal findings of the court are canvassed in paragraphs 125 – 130, premised on Articles 10(2)(C) and 259 (1)(a) and (d) of the Constitution. In these paragraphs, the justices explore the questions of conflict of interest, national values and the principles of governance contemplated in the Constitution.

More specifically, in paragraph 130 the five judges ruled that “from the constitutional scheme on separation of powers; members of legislative bodies, being members of the National Assembly, senators, county women representatives, and members of county assemblies ought not to be involved in the implementation of any service-based mandates which are the preserve of the Executive branch”.

According to the court, this is the only way to respect the constitutional scheme on separation of powers and ensure that legislators’ oversight mandate is not compromised through conflict of interest. It was the opinion of the judges that tolerating a contrary position would harm the constitution’s value system, particularly the national values and principles of accountable and good governance.

To beat this ruling and as an appeasement to buy political royalty, Kenya Kwanza processed the NG-CDF Amendments Act of 2022-2023 and its regulations thereof. This amended act was within the scope of the High Court ruling when it declared it as unconstitutional for similar reasons of being offensive to the principle of separation of powers, infringement on the design of devolution and constituency not a contemplated service delivery unit.

On these grounds then, the High Court ruled that NG-CDF must grind to a nought at the strike of the clock on midnight, June 30, 2026. This is to allow time for the fund to wound up any ongoing projects and contractual agreements.

Predictably, the reaction to the court’s ruling from ‘Waheshimiwa’s’ has been swift and furious both on social media and other public platforms.

From the foregoing, the plausible questions are: doesn’t parliament have access to sound legal advice on the legislative matters that are tabled before them? What of the prominent lawyers, some in the rank of Senior Counsels in their midst? What becomes of professionals who get elected into State Offices -do they leave their professional regalia outside the precincts of Parliament?

As fate would have it, this ruling coincides with the fund’s celebration of its 20th anniversary.  From the fund’s anniversary Magazine titled Honouring two decades of excellence and impact, the Fund has received at least Sh485.3 billion between 2003/04 and 2024/25 in budgetary allocations. These funds have primarily been spent on school and national government/security infrastructure, secondary and tertiary education bursaries, Huduma centres, social security, Kenya Medical Training College infrastructure and climate change mitigation.

From the listed information and statistics, the fund fails to demonstrate what are the socio-economic outcomes and/or impacts.

From a technical point of view, one would have expected the fund to have gone the extra mile to demonstrate tangible outcomes if it were to justify value for money to taxpayers.

This is especially so when the fund has been under immense legal assault from the civil society, the recent Gen-Z protests and the Senate. Given the foregoing, it is time we had a candid conversation about the relevance and future of CDF devoid of political emotions. From my corner, many things set the odds against the fund.

First, the post-2010 constitutional dispensation cured the historical injustice over the skewed concentration of public resources at the national level. This was the pillar on which CDF was founded. The Constitution has since decentralised the country into 47 county public service points, conferred executive powers and defined functions for the sub-national units with all the privileges and rights of a government. The national executive has preserved an unambiguous declaration that the two levels will serve the people not in competition, but under the principles of cooperation and coordination as one territory of the Republic of Kenya. So what is the place of a constituency in this order?

Second, no legislation can cure the court’s determination that CDF is offensive to the principle of separation of powers and the architecture of devolution, without amending the Constitution itself. This finding extends to kill NG-CDF cousins including the National Government Affirmative Action Fund that influences women representatives and any existing ward fund in the counties. All it requires is for somebody to walk into the High Court and petition for their dissolution too. Does anyone expect the Supreme Court to depart from its 2022 ruling when the appeals eventually land on their desk?

Finally, the fund is inevitably the first casualty of the changing socio-political fabric in the country, especially in the aftermath of the Gen-Z-led uprising.

In every village, everyone understands informally that any CDF contract or benefit comes laced with a 10 per cent cut. Folks also are able to figure out that the goodies they receive from their MP have a connection with the CDF kitty.

The MPs' swift reaction to the fund’s withdrawal betrays their role in the kitty, something they have been trying to distance themselves from in the many amendments!