A three-bench High Court judge decision declared the National Government Constituencies Development Fund (NG-CDF) as un-constitutional. The NGCDF was declared unconstitutional for violating the separation of powers, which includes encroachment of the functions of the National and County Governments; and failure of the National Assembly to consult the Senate when the Act was being formulated. This is the second time the courts are declaring the NGCDF unconstitutional after it did so in 2020. The National Assembly has stated its view and observed that they will be appealing the decision at the court of appeal. The CDF Act of 2003, enacted when Kenya did not have the Devolved structure, which divides Kenya into one National Government and 47 County Governments and hence the two are the levels to which funds can be used for development, allowed the government to set aside 2.5 percent of the last audited revenue as approved by the National Assembly to be channeled to the fund for use at the constituency level. Though we have successes in some cases, the major concern as been that of impact of these funds, where some projects costs as low as few thousands, with some cases where students get bursaries of Ksh. 2000 in some cases.
Different solutions to the stalemate can be agreed upon. One the fund can be run by an indipendent impartial organ that ensures transparency and accountability throughout. The NGCDF has a Secretariat for example that could be reformed to run the fund and ensure that Members of the National Assembly are completely de-linked from the fund. Secondly the fund can be transferred to Counties and measures put in place to ensure equity and fairness for development across the country. The same should be done for the National Government Affirmative Action Funds (NGAAF) with the allocations being assigned to counties. The push to have funds expended by the executive at the National and County Governments serves many functions and purpose, key of which is in ensuring harmonization of the development functions and funds in the country for efficiency, effectiveness and economy. As it is now, Parliament is both in the Executive and the Legislature, which doesn’t augur well for effective systems. The constituency is a sub-unit of the county and so all funds should be expended under the county at the local level, or other sub-county funds as established through law. May be Parliament can enact a law for funding of the Wards which has been a major clamour by MCAs and ensure that just like them, MCAs don’t have control of these funds so as to stick to county legislation, oversight and representation. Without the burden of running NGCDF, MPs will be free to undertake their constitutional duties of legislation, oversight and representation. Dr Giti is an urban management, public – private partnerships (PPP) and environment specialist. mutegigiti@gmail.com , @danielgiti
Dr. Daniel Mutegi Giti 