The control of billions of shillings and political influence that comes with it is at the centre of the MPs’ reluctance to surrender the Constituency Development Fund kitty.
The lawmakers have held onto the multibillion-shilling kitty despite pressure from critics to relinquish the fund to the national and county executives and courts declaring the fund unlawful.
The courts and critics argue that CDF violates constitutional principle of separation of powers – between the executive and legislature – as stipulated in the constitution. The constitution gives MPs exclusive mandate to legislate, oversight the executive and represent their constituents in Parliament.
On the other hand, the national and county executives are mandated to implement development projects. Consequently, pressure has mounted on lawmakers to let the county governments, headed by governors, to manage the funds.
However, MPs have remained adamant, maintaining that CDF is going nowhere. “Let there be no worry. We are prepared to protect the fund by enshrining it in the constitution,” Kasipul MP Ongondo Were argued.
According to the lawmakers, CDF and its successor – National Government Constituency Development Fund – have been a game changer since 2003.
“The achievements of the NG-CDF are undeniable. Many families have benefited and we are committed to ensuring it continues in the years to come,” Dagoretti North MP Beatrice Elachi said.
However, political observers say the MPs’ unwillingness to let go of the fund has everything to do with retaining their political influence.
“CDF has incessantly been used by MPs for personal profiling and as a tool to fight opponents as they endear themselves to the people,” said governance expert Javas Bigambo.
He said MPs are fighting the constitutional order of separation of powers and service delivery, a fact affirmed strongly by the courts, for political expediency.
“In so doing, they are emerging as impediments. Respect for court decisions should be demonstrated by Parliament,” he said.
Mark Bichachi, a political commentator, said control of CDF billions gives the MPs an edge on constituency politics. He said lawmakers are using the fund as a campaign tool and a fertile ground to enrich themselves by influencing tenders.
“CDF, its control and use is a way for MPs to ingredient themselves to the public in terms of being seen as providers of help,” he said.
In her audit reports, Auditor General Nancy Gathungu exposed blatant misuse of the fund across several counties, triggering concerns the monies could be ending up in the pockets of a few.
“Let development be handled at the national and county level. We want to hear MPs both from majority and minority sides coming out and declaring support for the abolition of CDF,” said Nominated Senator Tabitha Mutinda.
Often, senators and MPs have accused the governor of duplication of projects, especially roads.
Currently, governors are in court with MPs over the control of Sh10 billion from the Road Maintenance Levy Fund.
The lawmakers slashed the entire amount from the devolved units, triggering a court battle that has threatened to erode their relationship with governors.
The allocation to the NG-CDF currently stands at about Sh53.53 billion, which is the required minimum ( 2.5 per cent) of national government sharable revenue since its inception in 2003.
According to the NG-CDF Board, the bulk of the monies are channeled to education at 78.2 per cent, security at 5.7 per cent and climate change at 1.6 per cent. Other projects share the remaining percentage.
The NG-CDF dedicates about Sh15 billion annually to the bursary scheme, which benefits needy and deserving children.
On average, 1.2 million disadvantaged students benefit annually. Notable achievements include the construction of 26,452 new classrooms, thereby, creating an estimated capacity for almost two million students in the past five years.
NG-CDF has also established 3,087 new schools from scratch representing a substantial 26.6 per cent increase in schools built nationwide between 2003 and 2023.
The fund has also championed inclusive education by initiating 16 special needs schools nationwide. Over the years the fund has also seen construction and renovation of national administration and security projects such as offices, chief camps, police posts, and stations.
In September, a three-judge bench of the High Court declared the NG-CDF Act, 2015 unconstitutional. The court cited violation of the principle of separation of powers.
The National Assembly amended the Act ( 2015 ) in 2022 and 2023 in an apparent bid to beat a similar declaration of a 2013 Act that suffered a similar fate following unsuccessful appeals at the Court of Appeal and the Supreme Court.
Justices Kanyi Kimondo, Mugure Thande and Roselyne Aburili also cited the failure of the National Assembly to consult the Senate.
The trio, sitting at Nairobi’s Milimani Law Courts, said the fund and all its projects, programmes and activities shall cease to operate on June 30, 2026.
The judges said it would not be in the interest of the nation or justice to bring it to an abrupt closure. “We are also alive to the fact that there are short, medium and longterm projects [being] implemented by the fund. We are now in the middle of the financial year, and funds may have [been] allocated for ongoing projects,” the bench said.
However, the MPs have remained relentless and attempted to front amendments to the constitution to anchor the fund in law.
The National Dialogue Committee
and the botched Building Bridges
Initiative reports recommended
amending the country’s supreme
law to anchor the fund.
