The National Treasury disbursed 4 billion to the NGCDF kitty in January 2023. This was done against the backdrop of a supreme court verdict that declared the fund unconstitutional. Here, our Governance Lead, Marius Kioko looks at why the move by the National Treasury is offensive to the rule of law and constitutionalism.
The recent disbursement of funds by the National Treasury to the National Government Constituency Development Fund (NGCDF) kitty is illegal and offensive to constitutionalism and the rule of law. A supreme court bench of 5 judges led by Chief Justice Martha Koome ruled in August 2022 that the CDF Act violates the principle of separation of powers. Yet Treasury, under pressure from the executive and the national assembly disbursed the funds to the kitty. Parliamentarians staged a go-slow, with the president promising them that funds would be disbursed. To bend to the whims of the legislature and the executive the way the National Treasury did sets a very bad precedent.
In its pronouncements the Supreme Court stated that it was unconstitutional to allocate funds to the CDF before the division of revenue between the National and County Governments. The court also held that CDF offends the division of functions between National and County Governments since the CDF assumes to undertake functions that have already been devolved.
Currently part of education related functions are handled by the county governments. Devolution of such functions ought to be progressive; incentives such as the CDF seem to strengthen the National Government powers in performing such functions as opposed to reinforcing devolution.
The said fund would have had some relevance back in 2009 before the promulgation of the Constitution. But it should have ceased after August 2010.
Separation of Powers
There must be strong checks and balances at every level of government. This principle is enshrined in the constitution as separation of powers which is formulated by providing for the concurrent but independent running of the three arms of government.
The national government can channel such funds through the relevant ministries that is the ministry of interior and the ministry of education if it so wishes. For instance, through capitation the national government can facilitate tuition fees to all children country wide as opposed to bursaries through the NG-CDF which is very frequently occasioned by cases of discrimination and embezzlement of funds. The ministry of interior can always facilitate the construction of police stations throughout the country. In any case when an MP is associated with the construction of police stations, it makes it very difficult to hold the same legislator accountable when he might break the law.
Besides, we have other National Government Consolidated cash transfers funds such as Inua Jamii, Uwezo Fund, NGAAF and the recent Hustler Fund. These programs are not under the patronage of members of parliament and any additional funds from the treasury could be added here to assist needy and deserving citizens.
It is a fact that the executive must manage and implement the development agenda as the legislature provides oversight on the same. In the recent past there has been what seems to be an attempt by the executive to compromise the oversight responsibility of parliament. This is evident in the case of the proposed Privatization Bill of 2023 which seeks to appropriate the cabinet secretary the sole powers to approve proposals on privatization of state-owned entities while seeking to repeal the current privatization law which demands approval from the relevant Parliamentary Committees.
We should not be surprised if our parliamentarians allow such a bill to sail through parliament ignoring the fact that they are mandated to represent the electorate in such matters of National Importance instead of leaving all the decisions in the hands of a few individuals i.e. a board and a cabinet secretary.
In conclusion, we can’t tell if the implementation of the NG-CDF by the executive, while declared unconstitutional by the highest court in the land, is a dangling carrot that is meant to silence our members of parliament in subsequent decision-making processes. But we can be forgiven for thinking that it is a quid pro quo arrangement by the political elite and a betrayal of the public.
Are we expecting more amendments of such magnitude in the future since the bait has been swallowed by the fish?
Marius Kioko – Legal Counsel
 Section 26 Draft Privatization Bill 2023
 Section 23(2) Privatization Act No 2 of 2005