Home » Media Centre » Blogs » CDF and Women Fund allocations in the budget are unconstitutional
Parliament has been engaged in intense negotiations over the division of revenue Bill that finally saw an agreement passed. The National Assembly deducted funds from Senate, Judiciary and the Salary Remuneration Commission allocations as a form of punishment. The three institutions especially SRC and Judiciary have stood up to Parliament, something the legislators have felt should not be the case.
Even as the debate settles, there is need to scrutinize the specifics of the budget. Public scrutiny at this point is critical before the main budget is read to the nation. This is a public duty and constitutional requirement all need to undertake.
In its ruling few months ago, the High Court held that the Constituency Development Fund (CDF) Act should be amended to conform to the Constitution. This move irked the MPs, and for this reason they decided to punish the Judiciary by reducing its allocation.
Some MPs have come out publicly that they will appeal. Instructively, the Constituency Development Fund Board has put out a request for public input to inform amendments to the current law in order to comply with the court order and the Constitution.
In utter disregard of the High Court ruling, Parliament has gone ahead and allocated itself funds for CDF. Over sh38B has been allocated to CDF in the next financial year up from the current sh37.34B. This shows that Parliamentarians are not interested in abiding by the law.
In addition, there seems to be an allocation of sh2.03B as Affirmative Action Fund. This fund is what is also referred to us ‘Women Fund’ which was fought for by the 47 Women Representatives who wanted a fund for various programs in the counties.
In the court ruling regarding CDF, the Judges were clear that
…nowhere is it contemplated that a constituency shall be one of the beneficiaries of the national revenue before it is divided between the national and county government. Article 206 (1) (a) and (b) of the Constitution…
The Judges further stated that
In light of the specific grant and definition of legislative powers under the provisions of Articles 95 and 96 of the Constitution, we find that the involvement of the Members of Parliament in the CDF implementation violates the core principle of separation of powers and to this extent, the CDF Act is unconstitutional. We will also add here that, to the extent that the Act conflates the executive and legislative functions, it obfuscates accountability mechanism envisaged under the Constitution underpinned by the doctrine of separation of powers. In that respect, the Act violates key national values and principles enunciated under Article 10 of the Constitution, to wit, good governance and accountability and we so find.
It is clear from the ruling that the Judges found CDF against separation of powers principle and public finance in the Constitution. For Parliament to allocate funds to it and even add funds for Women Fund is tantamount to contempt of court. Parliament needs to show leadership and restraint and this decision is far from it.
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