BY SAM ALFAN.
The Supreme Court has declared Constituency Development Fund Act, 2013 as unconstitutional.
A bench led by Chief Justice Martha Koome, Deputy Chief Justice Philomena Mwilu, Njoki Ndung’u, William Ouko and Smokin Wanjala declared the CDF Act unconstitutional because it was passed without the involvement of the senate.
The judges said the CDF Act 2013 offends the constitutional principle of separation of powers, as it allows MPs to encroach on the mandate of the executive.
“A Fund directed at service delivery mandate can only be constitutionally complaint if structured in a manner that does not entangle members of Legislative bodies and Legislative bodies in the discharge of the service delivery mandate however symbolic,” the judges said.
The court said such funds ought to be integrated and subsumed within the structures of either the county executive or the national executive.
The act was first declared unconstitutional in 2015 but the Court of Appeal reversed the decision, prompting two organisations to move to the Supreme Court.
The National Assembly filed a Cross-Appeal also challenging part of the decision of the Court of Appeal, which declared some sections unconstitutional.
In 2015, the CDF Act 2003, was amended to establish the National Constituency Development Fund Board at the constituency level to replace the National Committee. CDF Committees were also established with respective Members of Parliament being the Constituency Committee patrons.
The top court judges said the constitutional scheme on separation of powers should be upheld given its implication for underlying constitutional values, which is, the maintenance of accountability and good governance.
According to the court, the idea of separating the functions and personnel of the three branches of government is intended to give effect to the related concept of ‘checks and balances’ which is linked to the constitutional principles and values of accountability and good governance.
They said this ensures that a branch can oversight the discharge of the mandate by a different branch thereby providing restraint on the exercise of public power, for example, the Legislature should oversight the discharge of functions by the Executive branch.
The apex court said it was obvious that as conceived and structured under the CDF Act 2013, MPs will have a personal interest or stake in the determination and implementation of projects by the Fund in their constituencies.
“Therefore, it follows that the CDF Act 2013 violates the values and principles of accountability and good governance,” the judges said.
