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Supreme Court finds CDF illegal

By Winfrey Owino - Aug 8th 2022
Chief Justice Martha Koome. [File, Standard]

The Supreme Court has declared the Constituency Development Fund illegal and unconstitutional.

This brings to the end a nine-year court battle between the Members of Parliament and civil society groups.

In its verdict this morning, the country’s highest court found that the law allowing MPs to manage funds offends division of revenue and public finance law.

“A declaration is hereby made that the Constituency Development Fund Act, 2013 is unconstitutional,” the verdict given by the five-judge bench read in part.

“We agree with the reasoning adopted by the High Court to the effect that the CDF Act 2013 violates the principle of separation of powers and that the CDF Act 2013 is unconstitutional. We also agree with the reasoning of the Court of Appeal, but only to the extent that it upholds the position of the High Court,”

The case was heard and determined by Chief Justice Martha Koome, DCJ Philomena Mwilu, lady justice Njoki Ndung’u, Justice Ouko and Justice Wanjala.

The case had been filed at the High Court in 2013, but it later escalated to the Supreme Court after the Court of Appeal overturned the High Court’s finding.

The matter pitted two civil society groups, Institute for Social Accountability (Tisa) and the Centre for Enhancing Democracy and Good governance, against the lawmakers.

In its ruling then, the High Court found that the CDF was unconstitutional in its entirety.

The High Court’s decision was appealed to the appellate court which established that only sections of the CDF Act were unconstitutional.

In its judgment dated November 24, 2017, the Court of Appeal prompted the two non-governmental organisations in the case to petition the Supreme Court to render itself on the matter.

They wanted the top court to overturn the judgment and orders of the Court of Appeal.

The NGOs wanted the court to declare that the failure to involve the Senate in the passage of the CDF Act was unconstitutional and any organ or body established by the Act is illegal as it is created without the authority of the law.

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