Charles Nyachae, Commission for the Implementation of the Constitution back court ruling against CDF

CIC ADVISORY ON THE HIGH COURT DECISION ON THE UNCONSTITUTIONALITY OF THE CDF ACT

The Commission for the Implementation of the Constitution appreciates the considered ruling by the High Court of Kenya on the unconstitutionality of the Constituency Development Fund Act.

In furtherance of our constitutional duty as a State Organ under Article 35 of the Constitution to publicize important information to the citizens of Kenya, and to reduce the confusion that appears to have arisen on the content and implications of the High Court decision, CIC issues the following advisory

HIGHLIGHTS OF THE COURT’S DECISION

The Act was declared unconstitutional on two principal grounds, the procedure of its enactment and the contents of the Act.

1. On Procedure

The failure to involve the Senate in the enactment of the CDF Act rendered it unconstitutional, as it was a Bill that concerned County governments.

2. On Content

The content of the CDF Act was declared unconstitutional for the following reasons;

a. The CDF Act created a new division of revenue entity not provided in the Constitution. The Constitution only provided for distribution of revenue between the National and County governments and not to Constituencies.

b. The Constitution under Article 202(2) required that Funds from the National government or institutions under it intended for implementation of functions constitutionally allocated to Counties be given to County governments as conditional or unconditional grants. The Court found that CDF was not a conditional grant as it was not given to County governments but was implemented directly by a national institution.

c. The implementation mechanisms under the Fund did not respect the structures established by the Constitution in the Counties. The Court declared that any funding of programs by national government must tap into existing structures of the County government. The Court frowned upon the implementation of CDF projects through a parallel process and through mechanisms that did not align with County structures and that interfered with County government autonomy

d. The identification and implementation of CDF projects failed to respect the distribution of functions between the two levels of government, thus allowing a national government institution to carry out functions that are constitutionally reserved to County governments

e. On the role of MPs in the CDF structures

The Court found that both directly and indirectly, MPs were involved in the planning, approval and implementation of CDF projects in contravention of the doctrine of separation of powers. The court found that the following activities by the Members of the National Assembly contravened the said principle:-

(i) Their involvement in the appointment process of members of the CDF committees

(ii) Their membership of the CDF Committees even as ex-officio members

(iii) Their dual role in legislation, oversight and implementation in respect of expenditure under the CDF framework.

(iv) Their membership and that of other elected representatives as members of County Project Committees whose role in the Act is to “coordinate the implementation of projects financed through the Fund”

(v) Some of the functions of the Parliamentary Select Committee of the CDF in which Members of the National Assembly sit which go beyond the oversight role of the Assembly

The Court found that these acts also undermine key constitutional principles of governance including devolution of power, accountability and good governance,

Suspension of the application of the declaration

The Court suspended the application of its declaration of unconstitutionality of the CDF Act for 12 months to enable the following:-

a. Allow the completion of any ongoing CDF projects and any legal obligations arising therefrom

b. Allow for remedying of the defects in the Act by the government including the possible enactment of a new law

In CIC’s view, the 12 months granted by the Court require that there be no additional funding of CDF for new programs under the CDF framework in the next financial year commencing 1st July 2015. Any funding for fresh projects would compromise and lead to an inevitable contravention of the Court’s decision.

Possible avenues to cure the defects in the Act

CIC believes that the opportunity given by the Court to remedy the defects in the Act within the next twelve months can be used to enact or improve existing legislation that promotes Constituency and even Ward based funding. That legislation must however respect and accord with the following minimums if it is to abide by the decision of the Court

1. That the new Act does not allow for the involvement of MPs in the CDF process at all other than in their general role of oversight of public expenditure.

2. That a Constituency based Fund may still be set up by the National government from its share of funds ,but it can only operate as a conditional or unconditional fund paid to County governments to carry out such projects and in such manner as will be provided in the conditions. These projects would have to form part of those included in the county integrated development plans to facilitate rationalized development. .

3. That a Constituency based Fund may still be operationalized but as a fund of the national government but to only carry out functions of the National government in the Counties for example on primary, secondary and higher education, security and development of national referral health facilities

CONCLUSION

1. The public should be aware that Constituency based development projects have NOT ended with the declaration on unconstitutionality of CDF. Both the National Government and the County government are obliged to ensure the effective implementation of developments projects at the Sub county levels including the Constituency

2. In furtherance of (1) above, we take this opportunity to remind County governments that they are required by the Constitution to decentralize their functions and to implement development to the lowest levels in the Counties.

The County Governments must also ensure that there is fairness and equity in the distribution of resources within the County, and that the public and the elected leaders are involved in the development of the CIDPs including identification of the projects in their localities. These were the ideals that informed the setting up of the CDF. These ideals have now been enshrined in the constitution and should be effected by the government closest to the people; the County government.

3. Parliament and especially the Senate and the County Assemblies must continue to play their critical role to ensure that Counties utilize funds allocated to them in a manner that respects the Constitution. That role cannot be effectively carried out if legislators also remain implementers of projects, which they oversee.

In this respect we draw attention to MCAs on the principles established by the Court in this matter so that they may align any existing or proposed Ward Development Funds with the Constitution.

We call upon citizens to continue to hold all levels of government accountable to proper and effective use of public resources and for the full implementation of the Constitution.

In this respect we wish to appreciate the two Civil Society institutions TISA and the Centre for Enhancing Good Governance which together with CIC prosecuted this critical matter in the Court.

We intend to defend any appeal on the case until the issue is fully determined. In the meantime we must all abide by the subsisting court decision.

We affirm our commitment to continue facilitating the full implementation of the Constitution of Kenya and protecting the sovereignty of the people

COMMISSION FOR THE IMPLEMENTATION OF THE CONSTITUTION