Affirmative Action Social Development Fund against the spirit of the Constitution

The recently launched Affirmative Action Social Development Fund (AASDF) is against the spirit of the Constitution. Women County Representatives (WCR) lobbied for the fund arguing that without it, their presence at the grassroots level is not being felt. Apparently, the WCRs will spend the Ksh 2 billion kitty to support women, youth and marginalized groups.

Projects which the affirmative action fund is designed to support include helping the recovery of sexual and gender-based violence survivors, youth who have dropped out of school, orphans and vulnerable children and talent nurturing of young people.

The fund which will be disbursed for the first time, comes at a time when a court ruling on the Constituency Development Fund (CDF) found it unconstitutional and ordered that it be restructured within a year.

The most fundamental question in the ruling was on the principle of separation of powers. Parliament is supposed to undertake representation, legislation and oversight including controlling the budget. Having elected MPs sit in CDF committees’ makes them part of the executive as they get involved in projects implementation.

When CDF was introduced in 2003, MPs were patrons of their local committees. However, the 2010 Constitution rendered the fund unnecessary. But in utter disregard of the law, they amended the law in January 2013 to give themselves a greater say.

The court ruled that the fund offends devolution hence it needs to be handled by devolved governments. So far, various stakeholders including MPs are working to amend the CDF Act to be in tandem with the Constitution and the court order.

Under the Constitution, the functions that the CDF kitty supports are the same as those devolved units. This brings in an issue of duplicity and also an opening for corruption. Already, the Auditor-General has exposed possible fraud running into more than Sh200 million in CDF expenditures from over 30 constituencies.

Some of the roles expected of the AASDF kitty also overlap with the National and County government mandates which renders it also unnecessary. Institutions should stick to their mandates and not interfere and purport to undertake functions which should be done by a different institution, or organ of government.

If the AASDF kitty is rolled out, a wide door to black-mail the National and County governments on budgetary matters will have been opened. If CDF did not exist, the Women County Representatives would not have demanded for their own fund. Senators have also been lobbying for a fund and in some counties Ward Representatives have already allocated themselves a budget for their ward. Such funds weaken oversight and establish parallel governance at the local level instead of creating a cohesive entity.

A key lesson from the CDF funds is politicians’ use them to rally support during elections. They only start projects that ensure they personally benefit directly or indirectly through their cronies. This is essentially what the Constitution wanted to cure by introducing devolution. In this case, should the AASDF kitty even be deployed? What will it take to nip it?

Posted by Mzalendo Editor on Sept. 12, 2015

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