Those who have followed the Constituency Development Fund journey will know that we when at the Constitutional Implementation Commission, supported by several Civil Society Organisations initiated the anti-CDF proceedings that recently culminated in a Supreme Court decision declaring the Act unconstitutional.
My animus against the CDF, as was organised under the impugned Act, is on record. In my days as a card-carrying legal purist, I believed that Members of Parliament were elected to legislate and oversight, not to “bring development”. Consequently, I had disdain for any process that gave MPs charge over public money as that compromised their ability to carry out their core functions.
After the passage of the new Constitution in 2010, my position was strengthened. Not only were the legislative roles of MPs restated, the funding of constituencies, now units of counties, were devolved to the nascent county governments. What were MPs doing managing development projects? As the realist in me has flourished, I have reconsidered my past legal purity.
I find myself hesitant to see a final epitaph on this Fund. By way of disclosure, I must confess that in my short life I had the privilege to serve as an active member of my constituency CDF for several years prior to 2010. I, therefore, have a first-hand experience of the difference that a well-managed local fund can do on the sometimes-forgotten micro issues that plague Kenyans in the countryside.
With devolution, these micro issues should have been resolved through county funding, but that has not always happened. The solution, it may be argued, ought to be ensuring more effective management of county planning and budget implementation to resolve these micro issues instead of setting up another fund. There may be a point to this argument but in the meantime, the recipient of the missing services would continue to suffer. My concern at the total annihilation of CDF is, however, for different reasons.
Should Dr Ruto’s administration obey the spirit of the Supreme Court decision and gut the CDF, several consequences will follow. I say the spirit of the decision because there is a technical legal window through which MPs can argue that what was deemed unconstitutional is the CDF Act which they have since replaced with a new one and hence CDF can continue until the current Act is itself deemed unconstitutional. That would, however, be legal nitpicking, but a cooperative National Treasury can be an accomplice in such a process.
Back to consequences. The first would be to keep MPs in Nairobi away from the constituencies. When we altered the law to make MPs legislators only, we did not send that memo to their constituents. I remain sympathetic to MPs who are the local ATMs in view of debilitating poverty in the countryside. They fund school fees, burials, weddings, churches, school constructions; the list is endless.
Who would dare visit their constituency without the promise of CDF, especially since citizens have not yet been weaned of it? Secondly and related to this, MP seats would now be a preserve of the monied who can afford to use their personal wealth to keep constituents happy. Without CDF, being an MP would be the most direct route to poverty and misery. Thirdly, MPs who have access to Cabinet Secretaries through their privileged positions in the ruling party or Parliamentary Committee positions would be the only ones to ‘organize development” for their constituencies through an alliance with line ministries.
This would lead us back to the “Siasa mbaya maisha mbaya” days where local development would be aligned along political partisanship and parliamentary privilege. At least with CDF some “development” tickled down to every village whatever their politics. Consequently, my reconsidered view is that CDF should continue. A couple of reforms will however be necessary.
CDF should be oversighted by the Senate like all funds going to political units. CDF and County planning should be aligned to avoid wastage and duplication. Finally, the direct involvement of MPs in the project implementation process needs to be minimized even if it cannot be eliminated. So, as we wait for the benefits of devolution to fully percolate, a more oversighted CDF can continue, for the benefit of our suffering citizens.