Nairobi, Kenya, Tuesday, June 10, 2014/...More than a year after Kenya held its first elections under a new progressive Constitution and established the devolved system of governance; there remains serious unconstitutionality of the Constituency Development Fund (CDF) implementation framework. The Constitution clearly stipulates under Article 187, the transfer process of the function and/or power between the levels of government. While fiscal devolution of more funds to the County is appropriate, financial resources scattered and thinly spread obscure effectiveness and increase avenues of waste. There is urgent need for proper mechanisms and legal framework to harmonize and consolidate devolved funds under the County Treasury to ensure prudent, responsible and accountability in utilization of those funds to maximize impact.
International Center for Policy and Conflict seeks to deduce as follows:
1. The Constitution of Kenya 2010 removed direct, indirect, overt or covert implementation of executive activities from the legislature. The people’s charter gave the National Assembly distinct role of representation, oversight and legislation at the national level.
2. The Constitution set the County as the epicenter of development and governance not the constituency. Thus, members of the National Assembly have no constitutional role to control, implement and administer the Constituency Development Fund (CDF) activities. While CDF will remain, implementation of its activities is reserve of the County Government Executive.
3. The CDF is supposed to be a constituency-based special project grant, which under the constitutional arrangement, is supposed to be channeled to specific projects in the constituency under the County Integrated Development Plan (CIDP). Every County has developed a CIDP where all the elected state officials namely Members of National Assembly, Senators and Members of the County Assembly play key role of identifying and prioritizing projects in the County. The county government should do the implementation of these projects. This should be through the County Treasury and County Ministerial departments without diverting the allocated funds.
4. In addition, the Members of the National Assembly (MNA) working together with the electorate should monitor, review, assess, audit and investigate the implementation of all CDF grant based projects. This enables the MNA to perform his/her constitutional duties as stipulated in articles 94 and 95 of the Constitution. The County government will facilitate projects’ implementation consultations and produce detailed account reports and implementation status of the projects.
5. The MNA must demonstrate high threshold of respect and accountability to the Constitution requirement of separation of powers and functions between Executive and Parliament.
6. The unconstitutional allowance of MNA to continue administering and implementing CDF activities has proliferation of demands by Women Representatives and Members of County Assembly for establishment of special funds for them. MCAs are blackmailing Governors and County Executives demanding for the setting up of Ward Development Fund and control of development projects’ implementation at the ward level.
7. The CDF as it stands now is in gross violation of the Constitution. It must be restructured to conform to the Constitution. The continuous existence of the CDF in contradiction with the Constitution framework of separation of functions of state institutions is a major source of tensions between various state institutions and a proliferation of devolved funds.
8. While the CDF Act, 2013 improves CDF management accountability, it violates the Constitution as follows:
i. The CDF Act, 2013 violates the principle of separation of powers: The Members of National Assembly, Members of County Assembly and Senators involvement in the implementation of projects through the County Project Committee violates the constitution principles of separation of powers and activities of Executive and Legislature. Sections 36, 37, 38, and 39 of the CDF Act, 2013 unconstitutionally provides for a leaders meeting called ‘County Projects Committee’ to undertake functions assigned to the county government and in contravention of the purpose for which different elected offices are created.
ii. The CDF Act, 2013, disrespects Article 202(2) on sharing of revenue; Sec. 4(1) (c) of the CDF Act, 2013 provides that CDF shall be disbursed by the national government through the board to constituencies as a GRANT to be channeled to the constituencies in the manner provided for under the Act. This contradicts the constitutional provision in Art 202(2), by stating that the national government disburses funds to the constituencies and not to the counties.
iii. The CDF Act, 2013, conflicts with other national legislations; Both the County Government Act, 2012 and the Public Finance Management (PFM) Act, 2012 create elaborate mechanisms for planning and funding of all county development projects under integrated county development plan. However, the CDF Act, 2013 assigns the planning function and identification of CDF projects through parallel frameworks e.g. the Ward Development Committees, Constituency Development Fund Committees and the County Projects Committee (CDF Act, 2013 sections 21, 22, 23, and 24).
iv. The CDF Act, 2013 establishes institutions, which duplicate the functions of institutions established under the County Government Act 2013, violating the principle of prudent utilization of funds under Article 201.
v. The CDF Act, 2013 was enacted in complete disregard of the constitution dictum of separation of powers of state institutions and levels of governments
9. It is unconstitutional to allow the Members of the National Assembly, Senate and County Assembly representatives to either directly or indirectly administer and/or implement development projects, which is a reserve of the Executive. Courts have in the recent past as cautioned constitutional bodies against encroaching and spreading their tentacles beyond powers donated to them by the constitution to avoid anarchy.
10. We call upon the Council of Governors, Transitional Authority, Commission on the Implementation of the Constitution, National Treasury and office of Controller of Budget to enforce the Constitution by ensuring CDF is brought under the County Government implementation framework. We also urge for proper harmonization and consolidation framework of the various devolved funds going to the County targeting different sectors of economy. The Senate should urgently enact the prerequisite legal framework to guide and regulate proliferation of devolved funds including the CDF to bring their implementation into conformity with the Constitution.