Can the SCOK government of Ruto obey the ruling barring MPs from handling CDF money?

13 mins read

One of the most well-known cases of outright theft of CDF resources was when the then avid UDA campaign boy Didmus Barasa grabbed a CDF vehicle in his own constituency and turned it into a Ruto campaign vehicle and was court red-handed.

The same dude is now an MP-elect for UDA charged with outright murder on election day when he shot somebody in the forehead. We have no clue as to what happened to the CDF car he stole.

The bigger issue is that the CDF is the single and biggest source of direct funding to constituencies. It comes directly from the Treasury and is allocated by the national government. Out of the CDF budget of Sh41.7 billion, each of the 290 constituencies has been allocated Sh137 million for development in the year to June 2022. In fact, MPs were able to squeeze an extra Shs. 2.9 billion from the Treasury for the CDF just as the elections were going on.

This is huge money and M.Ps basically use it as their private pocket money. The MP appoints members of what they call the NG CDF committee to run the entire CDF budget. As everybody knows these lawmakers usually appoint family members, personal friends, and other cohorts who transit the money to the pocket of the MP. This is what has happened these two decades since the CDF kitty was established in 2013.

All that changed on August 8, 2022, when the Supreme Court sealed the fate of the National Government Constituency Development Fund (NGCDF) ruling that the Act, which was enacted in 2013 and changed in 2015, is unconstitutional.

A bench of five judges led by Chief Justice Martha Koome ruled that the CDF Act violates the principle of separation of powers, hence is unconstitutional.

Each constituency receives at least Sh100 million every year and the legislators have used the kitty for community development projects.

“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 including Justice Koome, Deputy Chief Justice Philomena Mwilu, Smokin Wanjala, Njoki Ndung’u, and William Ouko said in their ruling.

The High Court had declared the Act unconstitutional in 2015 but Parliament moved to the Court of Appeal and successfully had the decision reversed. The appellate court only declared some sections of the Act unconstitutional.

Two non-governmental organizations, the Institute for Social Accountability (TISA) and the Centre for Enhancing Democracy and Good Governance (CEDGG) moved to the Supreme Court arguing that CDF is unconstitutional as MPs are involved in implementing tax-payer-funded projects, which is a preserve of the executive arm of government.

Without CDF going into their pockets the MPs will feel like they are unemployed because that is what they run for office to get. The salary they get is for loans to buy big houses and cars. The real money that comes to their pocket and which makes them super rich individuals roaming our streets all over the country is the CDF.

Already we know that some UDA leadership have been loudly complaining about the CDF ruling and indicating that they have to find a way to hand over that money back to MPs. The trouble with that is, the ruling on CDF was from the Supreme Court and there is no appeal.

UDA MPs are going to be furious claiming that the Supreme Court gave them the government after taking the money out of their pockets. What is the value of being an MP when you do not have the CDF in your pocket? That is their nightmare.

For now UDA is obsessed with who gets what position. Most of those positions including the Speaker of this and that are actually useless. There is no money there. As soon as they are done with these petty little things their biggest challenge is going to be what to do to get the CDF back in the hands of the MPs. If they could arrange a meeting with Martha Koome to sort this out they would but that is not going to happen. So what are the options?

The first and best option for the country is to leave the ruling on the CDF as it stands and accept that you cannot change it for the benefit of MPs. That would mean that all the NG CDF committees in all the 290 constituencies in Kenya which were appointed by MPs should be dissolved immediately.

This can be done by an act of parliament stating that all NG CDF counties are dissolved and once Ruto signs that the next question is who will run and maintain the CDF money and assets in the interim. The biggest issue with CDF now is that the MPs are going to vandalize the offices and grab as much money and assets as possible. That has to be stopped right now.

It can be done by a national task force set up by the government working with the opposition and civil society groups like the Institute for Social Accountability (TISA) which successfully filed the case to take CDF out of the hands of the MPs. Key issue here is for Ruto to understand that this matter is cannot be solved by UDA and the solution has to involve all parties in Kenyan politics and the civil society.

Once a non-partisan task force is established to reform the CDF that team can then go ahead and set up a new system of CDF administration free from the patronage and abuse of MPs and set up to benefit the citizens in every constituency. This new system can be taken to parliament and passed into law and then things move from there on to a positive note for Kenyans.

The other option and the most likely is that the National Assembly with Moses Wetangula – a Ruto surrogate as the Speaker is going to try to pass a new law to hand over the CDF back to MPs. That is exactly what parliament did before in 2015.

The MPs are going to try to get a new law to dodge around the SCOK ruling on CDF. One idea would be for the MPs to say that they will not run the CDF but they will supervise how it works because they are MPs.

The truth is you cannot supervise what you cannot handle. Once you supervise something, you are running it. With CDF, that would be against the SCOK ruling.

The real serious issue between the two options is that if things hit the roof and the MPs re-establish CDF as their pocket money, there is a very high chance that the civil society who won this case at the Supreme Court and others can move to have the CDF abolished altogether and a new mechanism put into law to directly fund community development from state funding.

And as long as the CDF is pocket money for MPs people will say cut it off completely. I am not sure that would benefit the MPs.

Kenyans know and appreciate that CDF at Shs. 42 billion a year is real money that should be in their hands right now. This is not some empty promise for elections. It has been in existence for two decades and there is nothing MPs can show for that money. Little wonder they never talk about it.

Kenyans will not let this money go back to the pockets of the MPs. CDF is their money for development. Case closed.

Essentially this is an issue where creativity and clear thinking is necessary to come to a practical and viable solution. Sadly as we know those are not the attributes you expect from a Kenyan MP. Our idea here on CDF is to put real solutions on the table instead of just complaining.

In the meantime, William Ruto is going to come to terms with what governance and leadership are all about. For a guy who has never been a leader all his political life but a follower of Moi and then Uhuru this is going to be a real nightmare for him.

Kenyans must be eagerly waiting for the price of unga and fuel to go down mara moja and permanently as Ruto promised. If that is done pronto then we are talking. Otherwise, reality strikes home for millions of Kenyans that they may be having a bigger problem than they had before.

The Mama Mbogas and Boda Boda groups are waiting for the various Shs. 50 billion packages promised to them to pick up and invest. That should in the banks in a couple of weeks hopefully.

William Ruto also has to manufacture some sources of money for those billions and billions of community investment funds without borrowing money because his UDA team told us Kenya is dying from debt and they will stop it.

I am not sure we can manufacture money the way Ruto and his friends did in 1992 with his Kanu Youth 92 team when they just walked to the Central Bank of Kenya with wheelbarrows and had them loaded with gunias of Shs 500 bills into millions every day.

So yes we are going to need wheelbarrows to pick some gunias of cash and the only question is where do we go for that. That is for Ruto to answer.

Adongo Ogony is a Human Rights Activist and a Writer who lives in Toronto, Canada

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