NG-CDF kitty is indispensable and needs to be cemented in law

The 2010 Constitution redrew the governance map with one key principle at its core: The separation of powers. It made this clear: Those who make laws and provide oversight should not implement those laws or handle funds.

Articles 94 and 95 assign MPs legislative and oversight roles. Article 96 assigns senators the duty to protect counties and exercise oversight over revenue allocated to them and not to spend the money themselves.

Now, there exists a lacuna in law regarding the true position of the NG-CDF, yet it has wholly transformed the society.

CDF was established with good intentions, given the prevailing state of the political economy at the time. However, the Constitution offered a comprehensive solution through devolution, the Equalisation Fund, and other mechanisms. The fund was aimed at social transformation, but a few miscreants have continued to mismanage the kitty, painting a picture of grand theft.

Sadly, good intentions do not always prevent the worst outcomes. Besides being a developmental fund, the lawless lawmakers nicknamed it the Legislators’ Enrichment Fund. Thus, the concept of Parliament as an oversight institution has been obscured.

Renaming CDF as NG-CDF was intended to resuscitate it and anchor it in a legislative framework, but this still did not cement it in law.

In Kenya today, few issues straddle legality, politics, and public perception as tightly as the debate around NG-CDF and National Government Affirmative Action Fund. These funds have become household names. They are seen as lifelines. They fund bursaries, community halls, women’s projects, and sometimes even fill in where county or national government fails. And because of that, they enjoy public goodwill. But that goodwill exists alongside a silent legal storm.

Yet despite this clarity, NG-CDF has survived. Courts have declared it unconstitutional before, not because it isn’t useful, not because it hasn’t transformed people’s livelihoods, but because it gives MPs executive powers. But do MPs really have sweeping powers over the fund? Not really. Methinks they are just mere patrons, and those charged with implementation are officers duly appointed by the NG-CDF board.

Perhaps the MPs’ executive role allows them to give an opinion on which classroom gets built, which road gets repaired, which student gets funded-all of which are not implementation roles but mere advisory roles. And that, in legal terms, is a breach of their mandate. As such, I propose that the fund be firmly anchored in law for clarity’s sake.

NGAAF, associated with Women Reps, walks a similar tightrope. It leans on the Affirmative Action clause in the Constitution but still places implementation power dangerously close to legislators. The Senate Oversight Fund, now being pushed forward, threatens to do the same-giving senators money in the name of ‘oversight’ but opening a backdoor to resource control.

MPs want to build. Women Reps want to empower. Senators want to oversee, but with cash in hand. Yet the Constitution whispers firmly: You were elected to watch, not to do.

Can we keep giving funds to people who are meant to oversee those who already have funds to spend? It sounds noble. After all, who wouldn’t want more bursaries and faster projects? But if we blur these lines too far, who then watches the watchers?

Currently, there exist a national tug-of-war. On one side stands the Constitution-firm, weathered, and holding its rope with both hands, defending the architecture of law and accountability. On the other, cartons full of bursary forms, muddy boots of youth groups, posters of upcoming CDF-funded bridges, all being pulled by MPs, Women Reps, and now senators. The people cheer from the sidelines, not because they love broken laws, but because they adore development and social transformation.

And that’s the tragedy. The law is clear, but the people are desperate. And in that desperation, I think the public good and interest takes precedence.