No more CDF. The recent declaration by the High Court of Kenya that the National Government Constituency Development Fund (NG-CDF) Act of 2015 is unconstitutional has significant implications for governance and development in Kenya.
This landmark judgement in Gikonyo & another v National Assembly of Kenya & 4 others; Governors & 3 others (Interested Parties) (Constitutional Petition 178 of 2016) [2024] KEHC 10886 (KLR) (Constitutional and Human Rights) (20 September 2024) (Judgment) has sparked widespread debate and interest, making it a crucial topic for legal professionals, policymakers, and the general public.
Background of the NG-CDF
The NG-CDF was established to promote equitable socio-economic development at the constituency level. It aimed to reduce poverty and enhance regional equity by funding various community projects.
The fund was managed by the National Government CDF Board, with committees at both the national and constituency levels overseeing its implementation. It facilitates local development projects by allocating funds directly to constituencies.
The primary objective was to empower local communities by enabling them to participate in decision-making processes regarding development projects that affect their lives. However, concerns regarding its constitutionality and effectiveness have emerged over the years.
Key Features of the NG-CDF
Funding Allocation: Each constituency receives a specific amount of money from the national government.
Project Selection: Local committees, including community members and elected leaders, are responsible for selecting projects.
Implementation: The fund is meant to support projects in education, health, infrastructure, and other essential services.
The High Court Ruling
On September 20, 2024, a three-judge bench comprising Hon. Mr. Justice Kanyi Kimondo, Hon. Lady Justice Mugure Thande, and Hon. Lady Justice Aburili Roselyne Ekirapa declared the NG-CDF Act of 2015 unconstitutional. The court found that the Act violated the principles of separation of powers and undermined the devolution principles enshrined in the Constitution of Kenya.
Key Reasons for the Ruling
Separation of Powers: The court ruled that the NG-CDF Act blurred the lines between the executive and legislative branches of government. By allowing Members of Parliament (MPs) to manage funds and oversee projects, the Act effectively created a third layer of governance not provided for in the Constitution.
Encroachment on County Functions: The NG-CDF was found to encroach on the functions of county governments. The Constitution delineates specific roles for national and county governments, and the NG-CDF’s involvement in local projects was seen as an overreach.
Public Participation: The court noted that the NG-CDF Act did not adequately provide for public participation in the decision-making process, which is a key constitutional requirement.
Implications of the Ruling
The ruling has several far-reaching implications:
Governance and Accountability: The decision reinforces the importance of clear separation of powers and adherence to constitutional principles. It underscores the need for MPs to focus on their legislative and oversight roles rather than direct involvement in project implementation.
Impact on Development Projects: The court allowed the NG-CDF to continue operating until June 30, 2026, to avoid abrupt disruption of ongoing projects. This transition period is crucial for ensuring that essential community projects are completed and alternative funding mechanisms are established.
Future Legislation: The ruling sets a precedent for future legislation, emphasizing the need for laws to align with constitutional principles. It also highlights the importance of public participation and transparency in the legislative process.
Legal and Political Ramifications: The ruling is likely to provoke legislative action as lawmakers scramble to address the constitutional gaps highlighted by the court. Potential reforms could involve revising the NG-CDF framework or finding alternative funding mechanisms that comply with constitutional mandates.
Public and Political Reactions
The ruling has elicited mixed reactions from various stakeholders:
Support from Civil Society: Many civil society organizations have welcomed the ruling, viewing it as a victory for constitutionalism and good governance. They argue that the NG-CDF had become a tool for political patronage and corruption.
Concerns from MPs: Some MPs have expressed concerns about the impact of the ruling on development projects in their constituencies. They argue that the NG-CDF has been instrumental in addressing local needs and that its abolition could hinder progress.
Public Reaction: Reactions from the public and civil society have been mixed. While many support the ruling as a step towards greater accountability, others express concern over the loss of a crucial funding mechanism for local projects. Community leaders and residents in constituencies reliant on the NG-CDF fear that their development priorities may be sidelined.
Moving Forward: Alternatives to the NG-CDF
With the NG-CDF set to be phased out, there is a need to explore alternative mechanisms for funding local development projects. Some potential alternatives include:
County Government Funds: Strengthening the capacity of county governments to manage development funds and projects could ensure that local needs are met without violating constitutional principles.
Public-Private Partnerships (PPPs): Encouraging PPPs can leverage private sector resources and expertise for community development projects.
Community-Based Organizations (CBOs): Supporting CBOs and other grassroots organizations can enhance community participation and ensure that development projects are aligned with local priorities.
Future of the NG-CDF
The government may seek to amend the NG-CDF Act to align it with constitutional requirements. Possible reforms could include:
Enhanced Public Participation: Implementing mechanisms for greater community involvement in project selection and budgeting.
Strengthening Accountability Measures: Establishing clear guidelines on the management and use of funds to ensure transparency.
Collaboration with County Governments: Creating a framework that allows for cooperation between the national and county governments to improve service delivery.
Conclusion
The Unconstitutionality of the National Government Constituency Development Fund (NG-CDF) Act of 2015 in Kenya marks a significant moment in Kenya’s legal and political landscape. It reinforces the importance of adhering to constitutional principles and the need for clear separation of powers.
As Kenya transitions away from the NG-CDF, it is essential to explore alternative mechanisms for funding local development projects that align with constitutional requirements and promote transparency, accountability, and public participation. This ruling serves as a reminder of the critical role of the judiciary in upholding the Constitution and ensuring that all laws and policies adhere to the principles of good governance.
As the country moves forward, it is crucial to engage in constructive dialogue and collaboration to develop sustainable and constitutionally compliant solutions for local development.
No More CDF: The Unconstitutionality of the National Government Constituency Development Fund (NG-CDF) Act of 2015 in Kenya.
To learn more, see the full Judgement in Gikonyo & another v National Assembly of Kenya & 4 others; Governors & 3 others (Interested Parties) (Constitutional Petition 178 of 2016) [2024] KEHC 10886 (KLR) (Constitutional and Human Rights) (20 September 2024) (Judgment)
