Parliament to contest ruling declaring NG-CDF illegal

The legal battle over the constitutionality of the National Government Constituency Development Fund (NG-CDF) is set to intensify after Members of Parliament vowed to challenge the court’s decision.

High Court judges Kanyi Kimondo and Roselyn Aburili on Friday sounded the death knell for the 20-year-old kitty by declaring it unconstitutional. In a swoop, the action of the court cut the MPs to size by taking away a tool sometimes used to reward supporters and punish critics.  

But a day later, constellations from legislators took centre-stage as Parliament issued a statement communicating its resolve to challenge the ruling, whose ripple effect would be MPs not accessing the billions allocated to the fund from June 30, next year.

In a statement released after the ruling, The National Assembly stated that a legal team representing it had requested a copy of the judgement and court proceedings to challenge the decision at the Court of Appeal.

“In the appeal, the National Assembly intends to challenge all the findings of the court about the constitutionality of the NG-CDF Act 2015,” read the statement in part.

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It also noted that the National Assembly will also apply for the stay of the declaration of the unconstitutionality of the NGCDF Act, pending the hearing and determination of the intended Appeal.

“The National Assembly intends to challenge the verdict on all the grounds cited by the Petitioners and allowed by the court,” it added.

However, should the status quo be upheld, the MPs will be ceding the power to control the kitty to the Executive as espoused in the ruling, which held that Parliament has no role in handling development matters.

To put it into perspective, NG-CDF has received Sh522.57 billion cumulatively in the last 20 years since its implementation under former President Kibaki’s administration.

 According to NG-CDF board Chief Executive Yusuf Mbono, a total of 3,087 new public schools have been built, 26,000 new classrooms constructed and an estimated 1.2 million learners continue benefiting from bursaries yearly. He revealed this during a function to mark NG-CDF’s 20th anniversary earlier this year.

A report by the board also noted that cases of misappropriation notwithstanding, school infrastructure financed by the fund has improved access to basic education by having an additional 882,026 slots for learners in both primary and secondary schools.

Moreover, it noted, the fund has established 61 new Kenya Medical Training Colleges and 155 new technical institutes in collaboration with the Ministry of Education.

And whereas the MPs are not involved in the direct running of the funds, they hold a lot of influence in the award of contracts such as for the construction of classrooms, roads and other facilities.

Some have, however, over the years used their sway to entrench corruption as indicated by the Office of the Auditor General reports.

However according to the High Court judges, the constituency is not a delivery unit and allocating funds leads to a waste of taxpayers’ money. In their Friday ruling, they observed that MPs were encroaching on the roles set aside for the county governments.

The development comes after a three-judge Bench comprising Justices Isaac Lenaola (Supreme Court), David Majanja (deceased), and Mumbi Ngugi (Court of Appeal) in 2020 invalidated the CDF Act but gave lawmakers 12 months to make the necessary amendments to align it with the 2010 constitution.

The MPs appealed and even implemented the NG-CDF Act to safeguard their allocations by the Treasury.

The Court of Appeal would also pronounce itself on the CDF. Justices Erastus Githinji, Hannah Okwengu and GBM Kariuki found that the fund is necessary for constituency development and constitution but ruled out the involvement of lawmakers in deciding the projects or the staff to manage billions disbursed every year from the Treasury.