Kenya’s Supreme Court has declared the Constituency Development Fund (CDF) illegal.
On Monday, the apex court ruled that allowing legislators to manage the funds is against the Division of Revenue and Public Finance law.
“A declaration is hereby made that the Constituency Development Fund Act, 2013 is unconstitutional,” the verdict given by the five-judge bench read in part.
In its declaration, the Supreme Court noted that the law allowing MPs to manage funds offends division of revenue and public finance law.
“We agree with the reasoning adopted by the High Court to the effect that the CDF Act 2013 violates the principle of separation of powers and that the CDF Act 2013 is unconstitutional,” read part of the verdict.
“We also agree with the reasoning of the Court of Appeal, but only to the extent that it upholds the position of the High Court. In doing so, as 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; it’s finding that the CDF did not violate the division of powers between the two levels of government.”
According to the court, the CDF amounted to an intergovernmental transfer of functions.
“We have also 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,” read the verdict.
The CDF Act was declared unconstitutional in February 2015.
The fund was introduced in 2003 during the Mwai Kibaki presidency with the aim of devolving some funds to the grassroots so that people would have a say on development.
The CDF Act 2003 (as amended in 2007) was repealed and replaced with the CDF Act 2013 which is aligned with the Constitution of Kenya 2010.
Despite that, the Institute of Social Accountability (TISA) went to court to challenge its constitutionality.
Tisa said the act undermined devolution and went against principles of the rule of law, good governance, transparency, and accountability.
It also mentioned that the act contravened the division of powers between the national and county government and the public finance management and administration.
According to Justice David Majanja, the process leading to the enactment of the CDF was not legitimate on grounds that the Senate was not involved in its enactment.
He said by involving MPs in the planning, approval, coordination and implementation of the CDF projects, the CDF Act violated the doctrine of separation of powers between the executive and legislative functions.