The Role of MPs: Why The Courts Declared The CDF To Be Unconstitutional
In a significant ruling, the High Court of Kenya recently declared the National Government Constituencies Development Fund (NG-CDF) unconstitutional. The ruling was based on several grounds, primarily the violation of the principle of separation of powers and the lack of Senate involvement when the NG-CDF Act was enacted. The Court emphasized that Members of Parliament should not be involved in the management of funds meant for development projects, as this infringes upon the executive branch’s responsibilities.
Although the Court recognized the value of the NG-CDF in supporting local communities since its establishment in 2003, it set a deadline for its discontinuation. All NG-CDF activities, including funding for ongoing projects, must cease by the 30th of June, 2026. This extended timeline was given to allow for the completion of current projects and to avoid abrupt disruption to ongoing developments in constituencies.
The three judge bench, composed of Justices Kanyi Kimondo, Mugure Thande and Roselyne Aburili, based their decision on the belief that by concentrating both legislative and executive roles in MPs, the NG-CDF disrupted the balance of power and accountability that is essential for good governance.
The following are some of the key points on how the Court justified their ruling:
- MPs Performing Executive Functions: MPs were deeply involved in selecting and managing projects funded by the NG-CDF, roles that should be carried out by the executive branch of government. The Court ruled that this amounted to MPs exercising executive power. This contradicts the idea of separation of powers, a principle found in the Constitution that is meant to ensure that the Legislative, the Executive and the Judicial arms of the government remain distinct.
- Undermining Devolution and County Governments: The Court found that the NG-CDF created a parallel system of development administration, which overlapped with the County Governments’ functions. According to the Constitution, development projects at the local level should fall under the purview of County Governments. The involvement of MPs in these matters interfered with the responsibilities assigned to County Administrations, further violating the separation of powers between the National and County Governments.
- Lack of Senate Involvement: The Court also pointed out that the NG-CDF Act was passed without the consultation of the Senate, something that is constitutionally required whenever a law impacts the Counties. This oversight effectively bypassed the legislative procedures designed to ensure checks and balances, thereby undermining the legislative process and contributing to the violation of Constitutional Provisions.
The role of MPs is primarily legislative. This includes making laws, representing their constituents in the National Assembly, and providing oversight over the Executive Branch to ensure accountability. MPs are expected to debate and pass bills, scrutinize government policies, and allocate national resources through the budgetary process.
The role of the County Governments is primarily to manage devolved functions, ensuring local governance and development in the Counties. County Governors are the heads of these local governments and are responsible for implementing county policies, managing resources, and delivering services such as health, agriculture and infrastructure development. They ensure that County development aligns with national goals while addressing local needs. The Governors oversee County budgets, coordinate County development plans, and manage public resources efficiently. They also work closely with County assemblies to enact local laws and policies.
MPs are responsible for voicing the concerns of their constituents at a national level. However, with the NG-CDF, many MPs took on an additional, controversial role in managing local development projects, something which is the work of the Governors and the County Governments. This is what the Court was addressing.
