CDF Returns: Loophole MPs Are Using to Outwit Supreme Court Judges

  • Chief Justice Martha Koome reading her ruling on the BBI Appeal at the Supreme Court on March 31, 2022.
    Chief Justice Martha Koome reading her ruling on the BBI Appeal at the Supreme Court on March 31, 2022.
    File
  • Lawmakers are exploiting an alleged gap in the Supreme Court ruling which nullified the Constituency Development Fund (CDF) as they seek to end the impasse and restore the programme. 

    The MPs were said to be assessing the August 8 pronouncement, which they argued was unclear and unsatisfactory. 

    They argued that the judgement issued by the apex court, led by Chief Justice Martha Koome, affected the 2013 CDF Act but not the 2015 National Government Constituency Development Fund (NG-CDF) Act. 

    NG-CDF Act was enacted in 2013 and amended in 2015. 

    Supreme Court judges, from left: Justices Isaac Lenaola, Smokin Wanjala, Philomena Mwilu (DCJ), Martha Koome (CJ), Ibrahim Mohammed, Njoki Ndungu and William Ouko outside the apex court premises on Thursday, March 31, 2022
    Supreme Court judges, from left: Justices Isaac Lenaola, Smokin Wanjala, Philomena Mwilu (DCJ), Martha Koome (CJ), Ibrahim Mohammed, Njoki Ndungu and William Ouko outside the apex court premises.
    Judiciary

    “Supreme Court annulled the CDF Act, 2013 while the Constituency Development Fund currently operates under the NG-CDF Act, 2015, which hasn't been nullified. 

    "CDF will continue to build our primary and secondary schools under the NG-CDF Act, 2015," Homa Bay Town MP, Opondo Kaluma argued. 

    Two MPs also submitted a proposal to re-introduce National Government Constituency Development Fund to the National Assembly.

    While ruling that the NG-CDF Act was unconstitutional, Supreme Court judges argued that the Act offends the division of functions between national and county governments.

    "A fund directed at service delivery mandate can only be constitutionally complaint if structured in a manner that does not entangle members of Legislative bodies and Legislative bodies in the discharge of the service delivery mandate however symbolic," the judges stated. 

    Each constituency received approximately Ksh100 million every year under the programme. 

    Supreme Court suggested the funds be integrated and subsumed within the structures of either the county governments or the Executive. 

    This was the second time that the CDF was declared unconstitutional. In 2015, Parliament moved to the Court of Appeal and successfully reversed a similar decision after High Court declared the Act unconstitutional.

    Petitioners, including two non-governmental organisations - the Institute for Social Accountability (TISA) and the Centre for Enhancing Democracy and Good Governance (CEDGG) - moved to the Supreme Court to have the kitty declared unconstitutional.

    President William Ruto has also calmed the MPs, stating that the CDF project is critical and must be revived as it has given the country the value for money  in several sectors. 

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    President Uhuru Kenyatta, ODM leader Raila Odinga and Nyanza MPs pose for a group photo at State House on Friday, May 28, 2021, ahead of the Kisumu tour
    PSCU