MPs in renewed push to amend Constitution

Just a day after the National Treasury released Sh5 billion for the National Government Constituencies Development Fund (NG-CDF), a proposal to save the kitty, which has since been declared unconstitutional by the courts, has been tabled at the National Assembly.

Legislators Samuel Chepkonga (Ainabkoi) and Otiende Amolo (Rarieda), in a renewed bid to circumvent the court ruling, have introduced a proposal to amend the Constitution of Kenya 2010 to entrench the NG-CDF kitty and further introduce a Senate Oversight Fund. It also seeks to embed the National Government Affirmative Action Fund (NGAAF) into law.

The legislative proposal, to be known as the Constitution of Kenya (Amendment) Bill 2024, was tabled in the National Assembly on Thursday, and seeks to alter the name of the kitty from the National Government Constituencies Development Fund to the National Government Constituencies Decentralized Fund in a move meant to ring-fence it and shield it from legal disruptions.

“The entrenchment of the National Government Constituencies Decentralised Fund in the Constitution will ensure that the critical role the Fund currently plays in promoting the participation of the people in the identification and implementation of priority national government programmes is safeguarded, as well as ensuring reasonable access to such services in all parts of the Republic of Kenya, as envisaged in Article 6(3) of the Constitution,” reads the proposal in part.

Oversight fund

The proposal also advocates for the setting up of a kitty for senators, the Senate Oversight Fund, to be anchored in the supreme law of the land and which Chepkonga and Amolo argue will ensure that the Senate is adequately empowered and resourced to perform its oversight functions as stipulated in Article 96 of the Constitution.

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“The Senate Oversight Fund shall be a national government fund consisting of monies appropriated from the national government’s share of revenue as divided by the annual Division of Revenue Act enacted pursuant to Article 218 of the Constitution,” further reads the proposal.

“The establishment of the National Government Affirmative Action Fund seeks to ensure that affirmative action groups including women, youth, persons with disabilities, vulnerable children and elderly persons have access to minimum financial facilities required for the promotion of enterprise development and provision of social development services at the constituency and county levels,” the Bill further states. 

Notably, the proposal comes against the backdrop of a court ruling declaring NG-CDF unconstitutional. A three-judge bench in September sounded the death knell for the kitty, noting that it had violated the separation of powers. Justices Kanyi Kimondo, Mugure Thande and Roselyne Aburili also cited failure by the National Assembly to consult the Senate as grounds for the kitty’s un-constitutionalism.

They said the fund and all its projects, programmes and activities shall cease to operate on June 30, 2026. They, however, noted that it was not in the interest of the nation or justice to bring it to an abrupt closure.

And during his communication to the House on Thursday, Speaker Moses Wetangula acknowledged having received the proposal by the legislators and committed it to the Departmental Committee on Justice and Legal Affairs (JLAC).

“I wish to bring to the attention of the House that I have received a legislative proposal intending to amend the Constitution to entrench NG-CDF, the Senate Oversight Fund and NGAAF in the Constitution. The proposal is co-sponsored by Ainabkoi MP Samuel Chepkonga and Rarieda MP Otiende Amolo,” the speaker said.

Acknowledging a similar proposal which had been introduced before the House by Matungulu MP Stephen Mule and his Gichugu counterpart Githinji Gichimu in November 2022, Wetangula explained that a joint parliamentary ad hoc committee considering the proposal had been unable to conclude its work and table a report despite a 90-day extension and that the numerous court cases on NG-CDF had prompted the introduction of the new proposal.

The earlier proposal by Mule and Gichimu had sought to increase the NG-CDF kitty to at least five per cent of the total national revenue. The law currently sets aside 2.5 per cent of the total revenue raised nationally to be shared among the 290 constituencies. Each constituency receives at least Sh137 million which legislators have been using for community development projects.

It had also called for the channelling of 0.001 per cent of all the national government share of revenue as divided in the Division of Revenue Act to the Senate Oversight Fund.

“This proposal and the earlier proposal introduced by Mule and Gichimu shall thereafter stand committed to the Justice and Legal Affairs committee for consideration. The committee shall expeditiously invite and consider submissions from the Attorney-General, the commissions and independent offices under Chapter 15 of the Constitution and any other body with a law reform mandate,” submitted the speaker.

The JLAC committee is now expected to submit its recommendations on the proposals by February 11, 2025, when the House resumes from the two-month-long recess it is on now.

Meanwhile, during the debate proceedings on Thursday, members of Parliament gave their input on the new proposal.

MP Chepkonga spoke on the protracted battle between the courts and Parliament over the constitutionality of the NG-CDF kitty.

“When we appeared before the three-judge bench on the NG-CDF case, it was unknown to me that the young lawyers present were beneficiaries of NG-CDF. Mr Speaker, you can see what people are seeking to do. To disenfranchise members of our communities. We must not accept this. We must entrench these funds in the Constitution to secure the future of our children,” he argued, adding:

“The courts have constantly pronounced themselves in a manner we have never agreed with. Now that we are being told that NGCDF is unconstitutional, we are going to make it constitutional and nobody will ever again say it is unconstitutional.”

He also credited the kitty for being behind any meaningful development at the constituencies, and, in the process, chided county governors, accusing them of being behind the “adverse” court rulings on NG-CDF.

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“When you go to our constituencies, the only visible development you will be able to see is that from NG-CDF. The governors, who we actually think have had a hand in these court decisions, have not done much with all the billions they get.”

Chairperson of the NG-CDF Committee, Musa Cherutich, also went out to push for the kitty.

“The CDF has been very instrumental in terms of construction of schools, school fees for our children and, Mr Speaker, all those who are against it are people who are retired and do not have children in school. They should continue taking care of their grandchildren so that they can appreciate the use of NG-CDF,” Cherutich said.

“Without any fear of contradiction, I can say that the only projects which make sense to Kenyans are those done at the constituency level, especially on the education and security sectors. As MPs, we are not part of the management of the CDF funds in this country. We are only patrons and play our role on oversight,” Mule held.