MPs vs MCAs: Court reignites CDF power battle

MPs are not out of the woods yet over management of the  Constituency Development Fund (CDF) after the High Court judgment slammed Members of County Assemblies for creating a similar fund.

In a verdict that now affirms that MCAs, just as MPs, cannot sit as patrons to such funds while still playing an oversight role for the money expended by the executive, Justice Jesse Njagi said this amounts to a conflict of interest.

“The designation of the ward representative as patrons of ward fund as patrons is a clear involvement of the ward representative in the executive functions of the county government and its administration. His role in convening the first meeting of the committee is an involvement in service delivery which is solely a mandate of the county government. Consequently, I find that the impugned sections are in contravention of section 9 (2) of the County Governments Act No.2 of 2014,” said Justice Njagi.

The judge was of the view that there is a likelihood of a ward representative influencing decisions of the meetings meant to allocate funds for development or bursaries. “The same interferes with the national values of democracy, accountability, good governance and devolution as stipulated in Article 10 of the Constitution of Kenya 2010. The act of the ward representative convening the first meeting of the committee amounts to participating in the management of the fund, which is created to offer services to the residents of the county,” he ruled.

“This again interferes with the doctrine of separation of powers between the county executive and the county assembly. It also interferes with the principle of accountability and good governance when the ward representative purports to oversight the same fund he/she participated in managing,” he said.

The judge declared that Section 13 (3) and (4) of Tana River County Ward Bursary Fund Administration Act No.2 of 2014 are unconstitutional for creating a ward fund. The case was filed by Frakheart Daiddo and James Onchanga against the board, the county assembly of Tana River and office of the governor of the same county.

The two argued it was illegal for MCAs to act as patrons and also sit in the oversight committees. According to them, there was a clear separation of powers between the county government and the county assembly. “The Constitution contemplated for a functional separation of power as provided in Article 174(i) and 175(a) which denotes that one branch of the government does not perform the function of another branch,” the two argued.

The governor and the board backed the case. They argued that it was illegal for an elected leader to oversee the executive while still performing the same function.

In the meantime, MPs have been in a long-standing battle to retain control over development money. It initially revolved around the defunct Constituency Development Fund (CDF). In this case, all courts- from the High Court to the Supreme Court sided with Wanjiru Gikonyo that CDF ought to have been scrapped after the 2010 Constitution.

At the Supreme Court, a six-judge bench composed of Chief Justice Martha Koome, her deputy Philomena Mwilu and Justices Smokin Wanjala, Njoki Ndung’u and William Ouko, the Constitution did not envisage MPs implementing projects for the public as part of their service delivery. They found that MPs were only allowed to legislate and oversight the national revenue and its expenditure. The court was of the view that the CDF law granted MPs powers to carry out counties’ functions. This, they said, offends the separation of powers adding that all the CDF functions and community projects should be linked to the counties, and not Parliament. They were of the view that the division of revenue should only be between national government and counties.

“The decentralisation of service delivery must be undertaken within the confines of the structures of the national government or county governments, not parallel to these two levels of government. Therefore, we see a “third” or “parallel” structure of government as altering the basic premises of the system of government created by the Constitution and as distorting the devolved structure of government,” the bench headed by the Chief Justice ruled..

The judges also held that CDF is a duplication of roles adding that the CDF law violated accountability and integrity principles as MPs cannot oversight themselves.

“Members of Parliament cannot oversee the implementation or coordination of the projects and at the same time, offer oversight over the same projects. To this end, we find that the CDF as structured under the CDF Act 2013 violates the constitutional principles on public finance, particularly the principle of prudent and responsible management of public funds as enshrined in Article 201(d) of the Constitution,” ruled Supreme Court.

The case stems from a verdict by the Court of Appeal that found that CDF money is a reserve of the Executive arm of government. A three Appeal Court judge bench composed of Justices Erastus Githinji, Hannah Okwengu, and GBM Kariuki, found that the powers to appoint CDF staff can be done by a Cabinet Secretary or the CDF board.

All other roles which had been set for the MP, according to the court, ought to be carried out by a sub-county administrator.

“The executive functions performed by the MP could properly have been assigned to the sub-county administrator as an officer of the national government. The appointment of MPs to perform purely executive duties of enforcing CDFA violates the Constitution and principles of Separation of Powers and of National Values and Governance,” they ruled.

But they declined to scrap the fund. This sparked yet another battle. Institute of Social Accountability and Centre for Enhancing Democracy and Good Governance urged the court to find that CDF Act, 2013 is illegal as the Constitution only envisages sharing of revenue between counties and the national government.

The two lobbies argued that the decision by the Court of Appeal failed to appreciate that lawmakers were being given money to carry out projects that can be done by counties, which is a duplication of roles.

“Article 201 of the Constitution requires that public money be used in a prudent and responsible way. Prudent use of public money would be undermined by the duplication of functions within the two levels of government,” the court heard.

In the Court of Appeal, MPs put up a spirited fight in order to retain the lucrative kitty under their sleeves. They argued that the money was not meant to take care of issues under the counties.

After a three-judge bench comprised of Justices Isaac Lenaola (Supreme Court), David Majanja and Mumbi Ngugi (Court of Appeal) CDF to be unconstitutional, the lawmakers came up with the National Government Constituency Development Fund Act (NGCDFA).

This opened the fresh battle before the High Court. In the new case, which was determined, Wanjiru, a director of The Institute for Social Accountability (TISA) and Centre for Enhancing Democracy and Good Governance (CEDGG) stated that the intended functions of the new fund are similar to what the County Governments do in the grass roots and thus will create a conflict.

“To the extent that the Act provides that NGCDF will be used on projects that fall within the functional areas of National Government without drawing a distinction between exclusive and concurrent functional areas, the Act threatens to interfere with functional integrity of County Governments and thus unconstitutional,” the court heard.

The two also alleged that MPs never considered the recommendations by Commission on Revenue Allocations (CRA) before they passed the bill into law.

The court papers read that NGDCF law is vague on whether the development to be done by the fund will lie under the National Government or the Counties.