Fund abolition puts MPs, ward reps and senators on level playing field

The abolition of the Constituency Development Fund (CDF) will substantially alter power structure by relegating the place of MPs, analysts say.

The invalidation of the all-crucial fund may also re-ignite clashes between the three arms of government, between the two levels of government (national and county) and between the various elected leaders.

MPs are already vowing to fight to maintain their place in the power structure by retaining the fund and the role they have had in its management. Depending on how they used CDF, MPs have won or lost elections.

According to Ben Sihanya of the University of Nairobi’s School of Law, CDF is, was and has always been an inherently illegitimate bi-product of political compromise.

“It’s about power balance from economic and political perspective. MPs want to control resources and to dole it out the way they wish with certain expectations. It’s an unconstitutional function they obtained through the backdoor,” Prof Sihanya said.

He says the first effect of abolishing the fund would be a feeling of betrayal with the system. “They will feel betrayed now that they will no longer be able to maintain their position in the power structure. It’s the same power senators and MCA’s have been craving for in the recent past.”

Previously, Members of the National Assembly have looked down upon Senators because they did not control any fund. An attempt by Senators to carve out their role in county development boards ended in controversy as was MCA’s adventure in creation of Ward Development Fund.

Political Pressure

Prof Sihanya is suggesting a fight-back of sorts. And Kiharu MP Irungu Kang’ata, who recently was awarded for best use of CDF in water provision, confirmed that they will fire on all cylinders to overturn the High Court ruling.

“Number one, we will appeal that ruling. Number two, we will use political pressure against the Judiciary to overturn it. The reasons advanced by the judges were neither cogent nor reasonable,” he told The Standard on Sunday.

He admits that MPs will lose some measure of political power but quickly adds: “That is neither here nor there. As a matter of fact, it was a positive competition to have two people, an MP and a Governor, running separate funds in the interest of one person, the citizen. Now the governors will become complacent because they do not feel the pressure.”

Karuti Kanyinga described the jolt that MPs have received from the ruling in terms of failure to appreciate the radical change brought about by the 2010 constitution. “They did not see it coming because many of them are used to parliamentary system where separation of power between the arms of government was quite blurred. The judges were basically telling them that the cheese has long moved and that their role has been limited to legislation,” Prof Kanyinga says.

But Kang’ata says it is not desirable even on a moral perspective to have leaders without funds to solve ordinary problems. Besides, the notion is not applicable in Africa because there are enough laws and little development, he says.

Campaign Tool

Prof Kanyinga, however, insists that MPs cannot implement development and undertake oversight at the same time. He says Friday’s ruling further invalidates all other funds designed along similar philosophy including the ward funds.

“Many people have not yet come to terms with the reality of how radical the 2010 constitution was,” he concludes.

Prof Sihanya says CDF has become a serious political factor especially when it comes to elections. Some MPs have used it well and gained huge political capital while others misuse it and kill their careers.

The ruling is a win for governors who have been fighting to have more resources channeled to them. It is a relief to governors who only this week were stripped off “His excellency” references by MPs. In the ruling, the judges were categorical that CDF must operate under county governors.

Attorney General Githu Muigai, the principal legal advisor to the government, himself conceded before the court that the management and administration of CDF should be under the direction and control of county governments.

In their ruling, the judges further re-defined the role of Speakers of National Assembly and the Senate in agreeing whether a Bill introduced in either house concerns the county government. The practice has been that the two speakers simply agree.

But now the judges said the concurrence of the two speakers is not enough and should be interrogated by courts where a dispute arises.

The judges said CDF as a precursor to devolution has been overtaken by events. They said to continue to retain it in its current structure could serve to dilute the principle of devolution.