Attorney General Githu Muigai and MPs put up spirited fight to retain kitty

The National Assembly and the Attorney General Githu Muigai joined hands to defend the kitty, and faulted the High Court finding that CDF is unconstitutional.PHOTO: COURTESY

Members of Parliament yesterday defended the Constituency Development Fund at the Court of Appeal.

The National Assembly and the Attorney General Githu Muigai joined hands to defend the kitty, and faulted the High Court finding that CDF is unconstitutional.

Appearing before Court of Appeal judges Erastus Githinji, GBM Kariuki and Hannah Okwengu, the MPs and the AG argued that the role of the fund does not interfere with the functions of the county governments.

National Assembly was represented by lawyer Anthony Njoroge. He argued that a constituency is different from a county and thus the money managed by the MPs ought not to be placed under the same basket with that managed by the counties.

"A constituency is not a part of the County Government and each constituency has its own issues to deal with," said Njoroge, adding that MPs did not go against the Constitution when they enacted the 2013 Act.

MPs also complained that the courts were interfering with their legislation process and that the Senate has no role to discuss the same since counties are not touched by the Act.

"The Bill never concerned the counties and thus could not be placed before the Senate. The initial CDF Act was passed before the existence of the Senate," the court was told.

Two lobby groups challenging the legality of the fund, on the other hand, asked the court to dismiss the appeal.

Institute for Social Accountability and Centre for Enhancing Democracy and Good Governance in their objection to the appeal argued that the court would be acting in futility if it determined the case as MPs had already enacted a new law to ensure they retain the funds.

Through lawyers Waikwa Wanyoike and Vincent Lempaa the lobbies also argued that local developments like dispensaries construction and water piping were taken to the counties and thus MPs could not base their claim to the CDF money on that.

"The appeal has been rendered moot following the repeal of the 2013 and the enactment into law of the National Government Constituency Development Funds Act fund 2013," the court heard.

The lobbies said that the 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.

"The repeal of the CDF Act rendered the Appeal moot. No controversy requires this court's adjudication survived that repeal," said Wanyoike.

The court will deliver its judgment on February 17, 2017.