The Supreme Court has declared Constituency Development Fund (CDF) illegal and unconstitutional.
In a judgement delivered by a five-judge bench led by Chief Justice, Martha Koome said the law setting up the fund was faulty and that allowing MPs to manage funds offends division of revenue and public finance law.
“The CDF Act 2013 as amended by the CDF (Amendment) Act, 2013 is unconstitutional on account of procedural lapses in the law-making process,” the Judges said.
While overturning the Court of Appeal decision that held the CDF to be legal, the Supreme Court has said it was unconstitutional for the national government to extend its mandate to counties.
The court has held that the CDF Act 2013 offends the division of functions between the national and county governments.
“The CDF Act 2013 offends constitutional principles on the division of revenue, public finance and separation of powers,” the five-judge bench has ruled.
The judges have also upheld the decision of the High court that the Constitution had been violated by the failure to involve the Senate when the law was amended.
“We have faulted and reversed the Court of Appeal’s restrictive approach in interpreting the law in relation to powers and functions of the county governments; its finding that the CDF did not violate the division of power between the two levels of government, and its interpretation that the CDF amounted to an inter-governmental transfer of functions. We have also reversed
the Court of Appeal on its findings on the issue of CDF and division of revenue, and
have restored the finding of the High Court, that the CDF Act 2013 violates the constitutional principle on the division of revenue.’
The decision follows after an appeal was filed at the Supreme Court by two lobby groups namely the Institute for Social Accountability and Centre for Enhancing Democracy and Good Governance challenging the constitutionality of the Constituency Development Fund Act, 2013 as amended by the Constituency Development Fund (Amendment) Act, 2013.
They challenged the Fund on grounds that the CDF Act 2013 offends constitutional principles on the division of revenue.
In 2020 the High Court found that the CDF Act 2013 was unconstitutional but later the Court of Appeal overturned that invalidity, save for Sections 24(3) (c) and (f) and 37 (1) (a) of the Act.
