The Supreme Court has 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.
”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,” Judges including Justice Koome, Deputy Chief Justice Philomena Mwilu, Smokin Wanjala, Njoki Ndung’u, and William Ouko said.
The top court judges said such funds ought to be integrated and subsumed within the structures of either the county executive or the national executive.
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.
That was the ruling of the Supreme Court on August 8, 2022. Essentially that means the MPs will no longer be allowed to hold the control of CDF which they do by appointing the NG-CDF board which they control and the CDF becomes money for the MPs to use as part of their personal income.
Right now, the battle is that the Ruto government wants MPs to grab CDF money and bypass the Supreme Court ruling which declared that CDF money is from the national government for community development and the legislators’ job and duty is to pass legislation and not to be running national government expenditures.
As of right now, every constituency gets Shs. 133 million per year. That amounts to Shs. 2 billion for every constituency in the last 15 years of CDF’s existence. Can our MPs and President Ruto tell Kenyans what each constituency has achieved with that kind of money during that period of time before they make demands to grab it back?
Now MPs want to double CDF money from 2.5 % of the national budget to 5%. Every constituency with the proposed changes will be getting more Shs. 260 million every year, primarily as pocket money for every MP, their friends, and their families. This is why the proposals will pass in parliament because every MP is very angry and hungry now about that money and it does not matter whether they are Azimio or Kenya Kwanza MPs. On tumbo matters, they have the exact same interests.
If you are going to get Shs. 260 million every year to eat, they are voting for that and the battle goes back to the courts. We will meet them there.
The attitude of the lawmakers and the government is that the Supreme Court tried to mess with them by stopping them from eating CDF money and now they are going to show the Supreme Court how powerful they are and double their money line called the CDF.
The only problem so far with the MP’s plan to grab back the CDF is that Senators are not getting as much money as they want for what they call Senate Oversight Fund (SOF). The MPs are offering them 0.001% of CDF to eat but they have refused that as too little.
If the MPs can up that 1% for them to eat, the new changes will be passed in a flash and every lawmaker and senator can eat until they choke on the CDF money. This would be a great start for the new regime. Give MPs something to eat then the big boys can do their eating in peace in their top offices where there is more money.
That was the wider scheme for the MPs to get back a hold of the CDF. It seems they have realized it is going to be a long and tough process. So what to do? In the new rogue government, we have in the country today, the MPs have decided there is no need to address the legal technicalities and want the government to just do the simple illegal act of asking the Treasury to release CDF money to them.
If this illegal act is not done, MPs are going on a strike. Nobody has told them that it is hard to go on a strike when you do nothing every day and get paid for it. You can only go on strike when you are actually working and doing productive stuff that would be missed when you are not working. Like when pilots go on strike and 12,000 passengers are stranded as the KQ planes are grounded.
MPs going on strike would be the best gift they could give Kenyans. And how the heck are they going to go on strike when there is no CDF to go feast on? They need the CDF money first then they can go on their regular strike of never showing up in parliament and just ride their big cars from one resort to the other loaded with that CDF cash.
Minority Leader Opiyo Wandayi asked parliamentarians not to engage in any business of parliament if the funds are not disbursed.
Wandayi asked the speaker to direct the Majority Leader to engage the National Treasury Cabinet Secretary Njuguna Ndung’u to know when the funds will be released.
”And may I also say, and this is not an empty threat, that failure to do that I will be moving members of the House to refrain from any talk of recess and secondly to refrain from any engagements on any business, until and unless NG-CDF funds are disbursed,” said Opiyo Wandayi, House Minority Leader.
Majority Leader Kimani Ichung’wa agreed with his sentiments, promising to engage the Executive in an effort to unlock the impasse.
Ichung’wa said matters of NG-CDF and the National Gender Affirmative Action Fund are very sensitive, not to the MPs but the populace they represent.
”There is nobody in the Executive who should imagine that you are doing any MP a favour by disbursing NG-CDF… The funds go directly to the people, our people are not waiting for us to go on recess, they want us to go and process their bursaries for term one school fees,” Kimani Ichungwa, House Majority Leader
Speaker Moses Wetangula directed Ichung’wa to engage the Treasury and give a formal statement on the way forward by Tuesday next week.
It is going to be very tough for Ruto and his all-over-the-place cabinet to figure out how to deal with this. Can Ruto order the Treasury to illegally issue CDF money to the MPs and face the wrath of Kenyans and the Supreme Court itself?
I know some of these chaps think Martha Koome and the Supreme Court are now in their pocket and will endorse anything they want for their stomachs. It is going to be tough for the Supreme Court to overrule themselves and give the MPs what they want, which is to have CDF back in their pockets as has been the case for 15 years.
The real sad issue here is that if we had a sane government and even semi-responsible MPs right the discussion the country would be having is how to restructure the CDF money so that it can be issued to the constituencies and fund development instead of being a feeding trough for the MPs or just being held hostage at the Treasury. Instead of addressing how the CDF legislation can be restructured to help develop their own constituencies, the MPs are build trying to find ways of putting the CDF money directly in their pockets.
The bottom line of that is to have elected Board of Governors with very specific targets on education, health, infrastructure and community participation in development.
The number one issue MPs have to deal with when they wake up to the fact that CDF may be gone forever from them is to realize that any new legislation will have to involve public participation.
It is money intended for all Kenyans and is a big piece of the Kenyan legislative system. Whether the MPs like it or not, any changes in the CDF legislation will require the Kenyan public to be involved and it won’t be through fake meetings. Civil society groups that took the CDF matter to court and won are on this matter and they are difficult to push around.
There are other practical things Kenyans will want to figure out. Look at the issue of drought now consuming the whole country. Drought-hit communities should know water is a CDF budget item. They should know that drought is an emergency and that CDF allocates five percent of its annual budget for such energies. They should then ask how the emergency account is spent
Can Kenyan MPs everywhere including those in the drought-hit communities tell the country what they have done with the CDF for the last decade and a half. Money supposed to build water resources in their constituencies. They cannot talk about it because they have done absolutely nothing with the CDF money to make resources available in their constituencies.
MPs target doubling CDF kitty to Sh88bn:
TUESDAY OCTOBER 11 2022
MPs have tabled two Bills to amend the Constitution in the fight to retain the Constituency Development Fund (CDF), opening a new battlefront with civil society that got the Supreme Court to declare the kitty unconstitutional.
The two Bills seek to entrench the National Government Constituency Development Fund (NG-CDF), where constituencies will be entitled to at least five percent of the total annual revenue due to the national government.
Currently, the law sets aside 2.5 percent of the total revenue raised nationally to be shared among the constituencies.
The Supreme Court in August ruled that the CDF Act, 2013 violates the principle of separation of powers, a ruling that took the kitty from lawmakers, occasioning protests from MPs.
The ruling was a big blow to MPs given that it has been a key political tool for lawmakers who use it as a campaign tool through projects.
The new Parliament has dismissed the Supreme Court ruling, arguing the current fund is being implemented under a new law—NG-CDF, 2015-and not the CDF Act, 2013, which was declared unconstitutional.
Matungulu MP Stephen Mule and his Gichugu counterpart Robert Gichumu have tabled separate Bills aimed at amending the Constitution to entrench the CDF.
“The two Members (Mr Mule and Mr Gichumu) are proposing to amend the Constitution to anchor the National Government Constituency Development Fund in the Constitution,” Moses Wetang’ula, the National Assembly Speaker, told MPs last week.
A draft constitutional amendment Bill sponsored by Mr Mule seeks to entrench the NG-CDF and three other funds in the Constitution.
The Bill seeks to amend Article 204 of the Constitution to entrench the National Government Affirmative Action Fund (NGAAF), which is controlled by 47 Woman Representatives.
The Bill further seeks to establish the Senate Oversight Fund and the Economic Stimulus and Empowerment Fund.
“There is established the National Government Constituency Development Fund which shall be a national government fund consisting of monies of an amount of not less than 5 percent of all the national government share of revenue as divided by the Annual Division of Revenue Act pursuant to Article 118 of the Constitution,” the Bill states.
The Division of Revenue Act provides for the equitable division of revenue raised nationally among the national and county levels of government.
The Treasury allocated the NG-CDF Sh44.3 billion in the current financial year and the kitty could double to Sh88 billion annually if MPs approve the proposal.
Each constituency receives at least Sh137 million and the legislators have used the kitty for community development projects.
Mr Mule wants the annual Sh2 billion NGAAF, which was established through the Public Finance Management Act, anchored in the Supreme law to complement national government programmes.
He wants the fund pegged at not less than one percent of all the national government share of revenue as divided by the Annual Division of Revenue Act.
The Bill also proposes the establishment of the Senate Oversight Fund whose monies shall not be less than 0.5 percent of all the national government share of revenue determined by the Annual Division of Revenue Act.
“The entrenchment of the Constitution will ensure that the critical role of the Funds in promoting the development of national government projects and empowerment is safeguarded as well as ensuring the Funds are not subject to abuse,” Mr Mule said.
It will require two-thirds or 233 MPs of the 349 lawmakers to approve the constitutional bills.
The amendment Bills follow President William Ruto’s appeal to MPs to to protect the Fund during his inaugural speech to Parliament.
The records of abuse of CDF money is a phenomenon and it is a big shame that our MPs because of sheer greed have not been able to use this very targeted grassroots funding in Kenya to promote economic development and education opportunities in their constituencies.
It is a terrible and criminal insult to their constituents but for our MPs, their constituents are the least of their concerns. Buy the votes, win the election, and to hell with your constituents. That is the modus operandi of our MPs and it is killing our country.
Can Kenyan MPs show the country where the CDF money is going?
DPP Haji Orders Arrest Of Malindi MP Aisha Jumwa Over Embezzlement Of Sh57.7M CDF Cash:
Director of Public Prosecutions Noordin Haji has given the approval for the prosecution of Malindi MP Aisha Jumwa and 7 others over misappropriation of over Kshs 57.7 million from the Constituency Development Fund kitty.
DCI conducted investigations into the allegations of misappropriation of CDF and abuse of office by the MP who allegedly received Sh57.7M. It was alleged that she received this money from her proxy companies; Multserve contractors Ltd, Kaseru Construction Ltd, Bizcot Ltd and Gadu stores Ltd.
Investigations by DCI established that Aisha Jumwa irregularly awarded Multserve Contractors which Robert Katana Wanje is the MD a tender to construct Malindi Sub-County education office block.
The company received Sh19M out of which Sh2.5M was illegally transferred to Aisha Jumwa. Robert Katana is husband to Aisha. Being proceeds of crime, Aisha concealed the Sh2.5M she received and made an installment deposit towards purchase of an apartment in Kilimani.
Aisha and the gang will now face 7 charges including; conspiracy to commit an offense of corruption, willful failure to comply with the law, conflict of interest, money laundering, acquisition of proceeds of crime, and forgery.
Here is Kavumbuni Secondary School in Kitui West which has been built with CDF. It looks wonderful, doesn’t it? There are thousands of such widely successful CDF projects like this one all over Kenya. At least the goats are having fun in this case but certainly not as much fun as the MP who cooked this up.
Here is another case of abuse of CDF resources that Kenyans witnessed in vivid colours just a few months ago.
In this case, an MP openly steals a CDF vehicle, changes the number plate and ownership papers of the CDF asset to be an asset for his boss, and gets caught red-handed. What happened to him with regard to this theft? Absolutely nothing. They are supposed to steal CDF assets so he was doing his job brilliantly and he got re-elected even after shooting somebody dead in broad daylight.
In fact, the Didmus Baraza case is the best example for Kenyans to know that in the CDF and or any other ventures in political life in Kenya, your MP will come shoot you in the head and take all your money and you better shut up. Kenyans get the message. It is fine for MPs to rob the country.
Was this CDF vehicle stolen by Didmus recovered? Was Didmus ever held responsible for public theft of a CDF vehicle?
No, No, and No would be a good answer for this government today.
Audit: 10th Parliament spent CDF cash on campaigns
By Patrick Kibet | 8yrs ago
Members of the last Parliament squandered some of the Sh17 billion from the Constituency Development Fund kitty through fraudulent deals, including political campaigns in their final year in office, the Auditor General has revealed.
An audit of the CDF for the 2012/2013 financial year shows how the kitty, shared among constituencies for grassroots development, was looted through irregular dealings.
The report says several projects under the fund in various constituencies stalled despite full payment of contracts while others had been awarded in violation of procurement laws. Other issues raised include unauthorised expenditure by various CDF committees, hence the auditor could not authoritatively ascertain if the funds were prudently spent.
But in some instances, the report, which was tabled in the National Assembly last week, singled out blatant cases of wasteful spending of public funds.
In Tigania East constituency, the Auditor General cited the use of the cash for apparent political campaign activities among serious accountability and breach of regulations. The report says Sh1.55 million withdrawn from the CDF account was used to procure services of preparing a documentary in form of DVDs and magazines. “Clearly, the message in the magazine was a campaign tool, implying CDF funds were utilized to fund political activities,” the report concludes especially since it was an election year.
Sh44million spent by Kiharu CDF team on various projects could not be established after it failed to avail payment vouchers, bank statements, invoices and procurement documents for audit.
The report also flagged allocation of Sh2 million for completion of unoccupied CDF offices after rent had been paid for an office in Muranga town. Questions have been raised over Sh1.9 million from Kisumu Town East project paid to Wandiege Dispensary through Kuoyo Unit Development Group. The funds were meant for construction of a septic tank, a soak pit and finishing works.
Instances of poor planning led to the loss of Sh2 million in Kuria West after the CDF committee contracted purchase of X-ray facilities despite the unsuitability of the building to host the facilities.
The auditor also raises doubts over Sh52 million disbursed to community-based organisations (CBOs) in Starehe Constituency to implement development projects. According to the report, the CBOs were being managed by project management committee members who are in charge of approving CDF funds use.
Adongo Ogony is a Kenyan Human Rights Activist and a Writer who lives in Toronto, Canada