The Court of Appeal has affirmed a decision to lock out Members of Parliament from Constituency Development Fund (CDF) management.
Justices Erastus Githinji, Hannah Okwengu and GBM Kariuki on Friday ruled out the MPs’ participation in decision-making or deployment of staff to manage the billions disbursed from the Treasury per year.
The judges concurred with the High Court’s earlier verdict, saying they have established that the control powers the legislators awarded themselves on CDF are a reserve of the Executive, and thus unconstitutional.
The court ascertained that the powers to appoint CDF staff can be done by a Cabinet Secretary or the CDF board.
All other roles which had been set for the MPs, according to the court, should be executed by a sub-county administrator. “The Executive functions performed by the MP could properly have been assigned to the sub-county administrator as an officer of national Government. The appointment of MPs to perform purely Executive duties of enforcing CDF violates the Constitution and principles of Separation of Powers and of National Values and Governance,” the court ruled.
The MPs had put up a spirited fight in order to retain the lucrative kitty under their dockets. In court, they argued that the money was not meant to take care of issues under the counties. Last year, High Court declared that CDF is unconstitutional.
A three-judge bench composed of Justice Isaac Lenaola, David Majanja and Mumbi Ngugi on February 20, 2016 invalidated the CDF Act, but gave law makers 12 months to make the necessary amendments in a bid to align it with the 2010 Constitution.
The legislators were forced to amend the CDF Act to create the National Government Constituency Development Fund Act (NGCDFA) to ensure they still had a hand in the kitty.
New law
The NGCDFA was also challenged in court on grounds that the MPs never involved the Senate in formulating the new law and it undermines devolution.
The case to have NGCDF declared unconstitutional was filed by Wanjiru Gikonyo and Cornelius Opuot, complaining that the lower House disregarded the Upper one whilst devising the new law.
The petitioners further argued that the legislators made the adjustment to give them control over the implementation of the new fund.
The two also say that the NGCDF Act offends the principles of public Finance and Management Act and division of revenue, which spells out that division of revenue, should be between the National Government and the Counties, and not constituencies.
MPs had vowed to stall the budget process if they will not have a hand in the CDF jar but their fate is sealed and they cannot touch it.
This year, MPs ought to have received Sh35 billion from The Treasury as an allocation for the 2016/17 budget but again, High Court judge Joseph Onguto, in another ruling, ordered that they cannot get more than 2.5 percent of total Government revenue allocation.
“The national revenues ought not to be chopped off even if it’s a penny. The court cannot allow it without interference,” the judge ruled.
“Treasury is prohibited from releasing any amount exceeding Sh25 billion.”
The law makers were to get the money through NGCDF.
The decision by the Court of Appeal that CDF is within the law spells the end of the NGCDF.
The judges said CDF is not meant to take up the role of the counties for developing the grass roots.
