The Constituency Development Fund, once praised for aiding marginalised communities, may eventually slip from MPs’ control following a twin attack from the courts and the Senate.
Senators on Wednesday vowed to shoot down the National Assembly’s proposal
seeking to, among others, entrench the NG-CDF into law.
This was the last avenue for MPs to cling to the fund, known for its unique role in uplifting communities but also tainted by claims of grand corruption.
Several senators have accused their National Assembly counterparts of trying to revive a
fund that has been declared unconstitutional by the Supreme Court.
The new stand will renew the political rivalry between the two Houses of Parliament.
Speaking to the Star on the phone, the senators also accused
members of the National Assembly of not involving them when coming up with the controversial amendments.
Through the National
Assembly Bill, 2025, MPs also seek to secure the legal standing of the National
Government Affirmative Action Fund and the Senate Oversight Fund.
Senate Minority Whip Edwin Sifuna told the Star they will
not fall for the small enticement of an Oversight Fund when the drafters of the
bill saw no reason to include Senate at its inception.
“First as a Senate, we have neither been consulted nor
involved in the formulation and passage of the bill. I don’t know why the
National Assembly thinks it knows what the Senate needs,” Sifuna told the Star.
“No one asked for the Senate Oversight Fund, so it is not a
priority for us.”
The Nairobi Senator said the Senate will not be used to
rubberstamp an illegal move by the National Assembly.
Attempts to amend the law ignoring the
constitutional concerns raised both by the High Court and the Supreme Court are a legislative overreach by the National Assembly, he said.
“My party ODM has already taken a position on this matter.
The position is that we legislators should not involve ourselves in any
executive functions and should stick to legislation, oversight and representation.”
Vihiga Senator Godffrey Osotsi described the renewed push to
entrench CDF into the constitution as an exercise in futility, arguing that it will
suffer the same fate as the Uhuru-era Building Bridges Initiative.
“The National Assembly wants to use shortcuts by avoiding a
referendum. Additionally, the bill has to be passed by the Senate and I am not
sure Senate is enthusiastic about the Senate Oversight Fund,” he said.
“We see it as a temporary carrot stick to win Senate support
for NGCF integration into the constitution. The National Assembly has over the
years refused to appreciate funds to the Judiciary Fund.”
Narok Senator Ledama Ole Kina was more brutal, insisting the
MPs' work must remain purely legislative.
“No Oversight [Fund], no CDF and definitely no Affirmative
Action Fund; our role is to legislate,” the Senate Minority Whip said.
Nyamira Senator Okongo Omogeni said they would look at the bill independently.
"It is good they have passed it but the constitution requires that it has to come to the Senate. We will look at whether it conforms to the constitution and see how to deal with it,” he said.
The growing standoff threatens to stall the revamped CDF framework
that MPs argued would help jumpstart stalled school infrastructure projects and
bursary programmes for needy students.
With the Senate expected to begin debate on the controversial law when they
resume from recess, political watchers say the impasse could trigger yet another
supremacy war reminiscent of past battles between the two Houses.
Nandi Senator Samson Cherargei, however, hinted at the possibility
of a high-stakes horse-trading between the two Houses.
Cherargei said the CDF passage might be tied to the Senate’s
Constitutional Amendment Bill that seeks to, among others, give senators a role
in vetting and approving state officers and taking part in budget making.
“We don’t have a problem with NGCDF. If they will pass our bill, we will also pass theirs, but if they don’t, we will go to the referendum,”
Charargei told the Star.
“We are not interested with Senate Oversight Fund. We have
our own Constitutional Amendment Bill to expand the legislative mandate of the
Senate, including but not limited to veto power, vetting and approval of state
officers, strengthening devolution and making the Senate an Upper House.”
Makueni Senator Dan Maanzo also said the Senate is focused on their new bill, which seeks to give them more
legislative latitude.
In considering the bill, Maanzo said they will be guided by
the Supreme Court’s verdict.
“We have started a different bill from theirs but even as
they bring theirs to us, we are going to look at the constitutionality of that
bill. We are going to consider what the court said on the NG-CDF,” Maanzo said on the phone.
He, too, said the Senate will not be enticed by the Senate
Oversight component so as to perpetuate an illegality.
The Supreme Court last year declared the NG-CDF unconstitutional and gave MPs up to
end of this financial year, June 2026, to wind up.
A three-judge bench comprising justices Kanyi Kimondo, Mugure Thande and
Roselyne Aburili on Friday declared the law unconstitutional, citing failure by
the National Assembly to consult the Senate when it was enacted.
Leaders and civil society actors have repeatedly demanded scrapping of the
fund, warning that the CDF law in its current form is anti-devolution.
ODM leader Raila Odinga has come out strongly against
members of National Assembly, accusing them of overstepping their mandate and
underming devolution by taking over roles meant for the devolved units.
Raila, a long-time champion of devolution, warned that the
blurring of lines between the two levels of governments' responsibilities could
roll back devolution gains.
“The courts were clear that NG-CDF was unconstitutional. If
they (MPs) don’t change, it will be an election agenda in the coming elections,”
Raila said in April.
Former National Assembly Speaker Justin Muturi has also
voiced opposition to the fund, terming it illegal.
