Kenya Supreme Court Declares Constituency Development Fund Unconstitutional

The Supreme Court has declared the National Government Constituency Development Fund (NGCDF) Act unconstitutional.

In a ruling on Monday, a five-judge bench comprising Chief Justice Martha Koome, Deputy Chief Justice Philomena Mwilu, Smokin Wanjala, Njoki Ndung’u and William Ouko said the CDF Act which was enacted in 2013 and amended in 2015 violates the principle of separation of powers.

“A fund directed at service delivery mandate can only be constitutionally compliant if structured in a manner that does not entangle members of Legislative bodies in the discharge of the service delivery mandate however symbolic,” the judges noted.

Each of the 290 constituencies receives a CDF kitty of at least Sh100 million annually which is used by MPs to initiate community development projects including roads, schools, health centres, and water projects.

The judges found that the law setting up the fund was faulty, and allowing Members of Parliament (MPs) to manage funds offends division of revenue and public finance law.

“The CDF Act 2013 offends the division of functions between the national and county governments, offends the constitutional principles on the division of revenues, public finances and separation of powers,” the judges ruled.

The judges further upheld the decision of the High Court that the constitution was violated by the failure to involve the Senate when the law was amended.

“We have faulted and reversed the Court of Appeal’s restrictive approach in interpreting the law in relation to powers and functions of the county governments. The court found that the CDF did not violate the division of power between the two levels of government.”

“We have reversed the Court of Appeal on its findings on the issue of CDF and division of revenue, and have restored the finding of the High Court, that the CDF Act 2013 violates the constitutional principle on the division of revenue,” the apex court ruled.

Two lobby groups, Institute for Social Accountability and the Centre for Enhancing Democracy and Good Governance challenged the constitutionality of the CDF Act on grounds that it offends the constitutional principles on the division of revenue.