Congress leaders were dealt a major blow after the High Court set aside billions of dollars spent on development and other purposes in their constituencies.
High Court Justices Kani Kimondo and Roselyn Abrili have declared the National Government Constituency Development Fund (NG-CDF) unconstitutional.
This means that if the ruling is upheld from next year, MPs will no longer have access to the funds.
“The National Government Constituency Development Fund (NGCDF) as amended for 2022 and 2023 is hereby declared unconstitutional. The NGCDF and all its projects, programmes and activities are hereby suspended with effect from midnight on 30th June 2026,” the court headed by Justice Kimmond ruled.
The ruling on the NG-CDF, which the lawmakers resubmitted, came after the original Constituency Development Fund (CDF) was also ruled unconstitutional and in violation of the separation of powers.
On Friday, two justices in the majority ruling said Congress has no role to address development.
At the same time, they observed that legislators were usurping roles reserved for county governments.
According to them, constituencies are not the unit of delivery and allocating funds would amount to a waste of taxpayers’ money.
They also ruled that lawmakers did not consult with the Senate in crafting the new law, which they said should expire by June 30, 2026.
Justice Mugure Tunde, on the other hand, ruled the law unconstitutional, but retired due to time-barred reasons.
She ruled that the deadline should be brought forward by a year, to end on June 30, 2025. If it were allowed to continue two years beyond the deadline, it would amount to continuing unlawful conduct, she said.
The fund was introduced 20 years ago. In 2020, a three-judge bench consisting of Justice Isaac Lenaola (Supreme Court), Justice David Majanja (deceased) and Justice Mumbi Ngugi (Court of Appeal) struck down the CDF Act but gave lawmakers 12 months to make necessary amendments to bring it into line with the 2010 Constitution.
The lawmakers appealed, then appealed again and enacted the National Government Constituency Development Fund Act (NG-CDFA) to ensure they retained a stake in allocations from the national treasury.
However, the Court of Appeal took a different view of the CDF.
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Justices Erastus Githinji, Hannah Okwengu and GBM Kariuki found that the fund was necessary for the development and constitution of the constituency, but that lawmakers should not be allowed to be involved in deciding projects and personnel that manage the billions of dollars disbursed annually from the national treasury.
The justices agreed with the high court’s ruling, finding that the control lawmakers gave themselves over the CDF was the prerogative of the executive branch of government and therefore unconstitutional.
The court ruled that the power to appoint CDF officials can rest with the Cabinet Secretary or the CDF Board.
All other functions that were assigned to the MPs should have been performed by the district executive officers, according to the court.
“The administrative functions performed by the members of the National Assembly could have been properly assigned to the county executives, who are officials of the central government. The appointment of members of the National Assembly to perform the purely administrative task of implementing the CDFA violates the Constitution and the principles of separation of powers, as well as national values and governance,” the court ruled.
The NGCDFA was also challenged on the grounds that lawmakers did not involve the Senate in crafting the new law, which undermined devolution.
The lawsuit claiming the NGCDF is unconstitutional was brought by Wanjiru Gikonyo and Cornelius Opuot, who alleged that the House of Representatives ignored the Senate in enacting the new law, while at the same time enacting it in a manner that gave lawmakers control over the implementation of the new fund.
They also argued that the NGCDF Act violates the Public Financial Management Act and principles of revenue sharing, which state that revenue sharing should be between the national government and counties, not constituencies.
Lawmakers have vowed to slow down the budget process if they don’t touch the CDF funds, but they are destined to never get their hands on them.
This year, lawmakers were supposed to receive Sh62.3 billion from the Treasury as allocation for the 2024-2025 budget.
This follows a new ruling by High Court Justice Joseph Ongut which limited the allocation to less than 2.5% of total government revenue.
“There should be no reduction in state revenue, not even a penny. It cannot be allowed without the court’s intervention,” the judge ruled, adding that it was illegal to donate more than the amount set out in the state revenue sharing law.
