By George Jim Githinji
About two weeks ago, the High Court of Kenya ruled that the Constituency Development Fund (CDF) Act 2013 is invalid and unconstitutional. The petitioners had challenged the legality of this law by interrogating the process leading to the enactment of the Act and the substance of the legislation including the nature, administration and management of the Fund. Some of the issues the petitioners contended include that the CDF Act contravenes the constitutional principles regarding the rule of law, good governance, transparency, accountability, separation of powers, and the division of powers between the national and county governments.
However, the High Court extended the order of invalidity to twelve months in order to grant the national government a window period to amend the law in order to comply with constitutional principles. If not amended within 12 months from the day of judgment, the CDF law shall be declared null and void. The 12 months window period will also ensure that the on-going projects under the Fund are not interfered with and that it does not interrupt the running of the current budget cycle.
The biggest task now lies with parliament which has to amend and streamline the law in order to honor the spirit of the Constitution and to accord with the High Court ruling. The MPs have said that they will appeal the ruling in the Court of Appeal and also plan to form a taskforce to determine how the MPs will finance the appeal case. Strangely, they have gone ahead to outrageously insult the same Judiciary they intend to appeal to and even threatening to slash its development budget and allocate the money to the Ministry of Lands. In fact, MPs like Jakoyo Midiwo of Gem have gone ahead to refer to the judges who passed the ruling as irritable!
With the CDF evidently being taken from them, them MPs appear to have grown big cojones lately! The current â€˜unityâ€™ between Jubilee and CORD MPs was last seen in 2013 when they greedily tripled their salaries and allowances.
The grounds invalidating CDF are however very reasonable and farsighted. The MPs are misleading Kenyans by saying that the Judiciary does not respect their roles. The role of MPs in the current dispensation does not include management and implementation of funds, which is exactly what they have been doing by patronizing CDF.
We cannot all dispute that CDF has achieved some meaningful development with tangible projects being experienced in the grassroots such as classrooms, dispensaries, bursaries, health centres, and road repairs among others. But with a similar concern, we are all aware that the MPs and the CDF Committees have misappropriated the money in the past 11 years of the Fundâ€™s existence. Even the founder of the fund, Senator Muriuki Karue, agrees with the disbandment of the fund saying it has not achieved the roles it was meant for.
According to Articles 94 and 95 of the Constitution, the roles of the MPs are primarily to represent the people from their constituencies, to legislate and to oversee the executive. Through legislation, MPs in the National Assembly make laws, pass laws and amend laws in line with the constitution. Through oversight, they determine the allocation of money to both levels of government (a shared role with the Senate), what money goes to state ministries, departments and other organs, and also how the national government spends its money in order to ensure efficiency, transparency and accountability of public resources. With these three distinct roles, then mandate of MPs is fully covered. Then why are they crying crocodile tears that taking CDF away from them is usurping their roles?
MPs want to retain CDF in order to continue patronizing it, misappropriating it and using it as a political tool to negotiate with their constituents for second and subsequent parliamentary terms. Despite all the measures they take to maintain the fund among them, it shall still remain unconstitutional if they continue being the implementers and managers of the fund.
Therefore, the MPs should let go of their egos and let the money be channeled through the counties, either through the relevant national government ministry or as a conditional grant from the national government for specific constituency projects under county management. They can then set up mechanisms to oversee and ensure transparency and accountability in the expenditure of the fund, which will still continue to benefit their constituents. In addition, the National Assembly MPs should then embark on a massive and well planned campaign to educate the public on their roles so as to eradicate the â€œCDF mentalityâ€™ common among many Kenyans. CDF mentality leads Kenyans to demand proof of tangible development projects initiated by the MPs as testimony that they have been indeed â€˜workingâ€™, despite that not being an exclusive role of an MP.