SECTIONS

Reinstating CDF will go against the Constitution

When Education Ministry officials visited Technology Primary School in Kiharu that has benefitted from the NG CDF. [Boniface Gikandi, Standard]

Members of the National Assembly are in office as State officers, courtesy of the Constitution. The Constitution creates other institutions and gives powers to persons to serve in those institutions.
The totality of the work done by the State and public officers completes what is called the civil service and should they undermine each other’s roles, the State will grind to halt or simply slide into anarchy.
That is why the running of a government requires clear roles of each arm of the government and mechanism of coordination with other arms of  government with countervailing powers - each arm checking on the excesses of the other without usurping the actual role.
These governance principles therefore call on Parliament, as the law making arm of government, to keep off the roles reserved for the Executive and Judiciary by the Constitution.
The laws that Parliament makes as an institution must have the binding force of law. The Executive must not undermine the laws passed by Parliament and Parliament must not undermine the Executive by pressuring it to roll out policies or undertake tasks that go against the supreme law of the land, the Constitution
The 13th Parliament seems to have started off on the wrong footing. It came to power when the Supreme Court, the highest court in the land, had pronounced itself that Constituency Development Fund Act, 2013 is unconstitutional one day before the August 8, 2022.
Out of the pronouncement, the National Assembly is on the warpath with the other two arms of government. They are mounting pressure on the Treasury and threatening to boycott work to force the release NG-CDF monies despite clear pronouncement by the court that the fund is inimical to the supreme law. 
The challenge on CDF started, almost 10 years ago and total of 12 judges, three in the High Court, three in the Court of Appeal and six in the Supreme Court all agreed that it violates several principles of the Constitution and constitutionalism.
By MPs having been sworn to defend the Constitution, it is paradoxical that they only want to uphold the chapter of the Constitution that puts them in power and undermine any other so that they can have their way.
Nations fail when institutions lose independence from both internal and external forces or state institutions cannibalise each other. The net effect of this is that citizens who depend on these institutions to safeguard their fundamental rights and freedoms lose confidence in them. 
MPs are the greatest consumers of justice and beneficiaries of the rule of law. Therefore, they must be the last people to hold other arms of the government to ransom over a fund that the Supreme Court has declared unconstitutional regardless of how passionate they feel about it. 
Anarchy is not an instant event. It is gradual and comes slowly with institutions undermining each other for short-term gains. Unless and until the laws are streamlined, MPs should forget about CDF.