KANYADUDI: Align constituency and ward funds to ensure fairness

Through a motion moved in the National Assembly by then Ol Kalou MP Muriuki Karue, the National Government Constituencies Development Fund was established in 2003 through the enactment of the Constituencies Development Fund Act. The fund's goal was to provide development funding at the local level to address disparities and empower communities.

The initial CDF Act of 2003 was later reviewed, with the current NG-CDF Act being enacted in 2015 and subsequently amended. It came in to redress what was considered skewed and reduced allocation of development funds to areas perceived to be unfriendly to the ruling party.

This worrying trend was much more prevalent during the first decade of multiparty reign in Kenya under then President Daniel Moi. Out of fear of being marginalised by the imperial presidency under Narc’s Mwai Kibaki, the MPs rallied to enact this legislation. This was also to help them entrench themselves as the benevolent development providers.

A formula of revenue sharing was embedded in the Act to protect it from the vagaries of political expediency during the budget process. Therefore, every MP was able to predict the amount of CDF allocation in the next budget cycle and make project proposals as appropriate.

The MPs became demigods in their constituencies as they designed, launched and executed development projects, with little regard to the Executive.

They became the patrons of the CDF committees. But in truth they determined what every shilling did in the constituency. In time they devolved the very malpractice of the Executive that they sought to cure in the first place. There were glaring disparities in the allocation and distribution of the funds across the constituencies and people cried out against inequalities and favouritism.

In August 2010, the new Constitution was promulgated. Among the key features was the devolution chapter. This was a vital plank in the new legal framework as it sought to entrench fair administration and sharing of resources. It established the two levels of government at national and county tiers.

It defined their relationship and how they were to share revenue generated every financial year. To some extent the formula for shared revenue closely mirrored that of the CDF, except that the county in addition had its internally generated funds.

The county governments and the National Treasury proceeded to implement the legal requirements of devolution. Resources began to flow to the people without the previous necessity of sycophancy to the Executive. As the nation continued to implement and breathe life into the new laws, questions began to be asked about the constitutionality of the CDF.

The laws clearly delineated what each of the three arms of government was meant to undertake. Parliament, both the National Assembly and Senate, was tasked with the noble role of legislation and oversight. The CDF, on the other hand, gave the Legislature powers to implement development projects, a role that belongs to the Executive.

The matter eventually found itself in the judiciary for arbitration. The High Court ruled that the CDF with its many amendments was unconstitutional. Parliament was then given some months to wind it up and complete the ongoing projects within six months. However, Parliament instead chose to try to entrench it in the constitution through an amendment that was to be taken through people. It hasn’t happened yet.

What the MPs have refused to address is the question of duplication of roles by the Executive and Legislature and duplication in oversight responsibility. How would the MPs provide oversight to themselves in project implementation and why should they establish executive arms in the constituencies to execute the projects?

This conflict of interest has since been exposed graphically by the recent report of the Office of the Auditor General. The report has revealed existing systemic mismanagement of the CDF funds. A whopping Sh1.3 billion have been lost through shoddy work and stalled projects. There are cases of irregularities in project implementation and instances of outright theft of public funds.

These twin malpractices arise because of vested interests and the inability of the MPs to undertake project superintendent work and oversight assessment.

One person cannot effectively be the initiator, implementer, supervisor and auditor of the same project. Gaps will naturally occur and create loopholes for pilferage and poor workmanship. In turn and taking the cue from their big brothers, the MCAs have variously demanded creation of a Ward Development Fund (WDF).

Many assemblies have proceeded to initiate legislation on the same. Out of fear of impeachment, governors have assented to such legislation without regard to their constitutionality.

In some instances, the governors themselves have taken the initiative to forestall any backlash from the assemblies by including such funds in their annual budgets. As with the CDF, these funds are equally unconstitutional and create conflict of interest on the part of the MCAs.

Addressing development gaps with the CDF and similar funds are quite commendable. The relevance of the initiatives cannot be gainsaid. However, they are established to address the fear of the excesses of the Executive in resource allocation and distribution. However, such policy of profound impact should address vision and hope instead of fear of the past.

Within the purview of the current constitution, the CDF and sister funds cannot stand the test of constitutionality and, more so, the test of good governance. In appreciating the positive objective for which they were established, lawmakers must find ways to align them with constitution.

Initiating a referendum to firmly fix them in the supreme law will be like trying to force square pegs into round holes. They will never fit. The main objective of the CDF and later in some counties, the WDF was to address and redress marginalisation.

It had been the case that leaders with executive authority would deliberately and consistently deny development funds to populations considered not supportive of the government.

This is in spite of the fact that these citizens equally paid their fair share of taxes to both the county and national governments. The allocation was, therefore, not equitable and led to a lopsided development profile.

This can be addressed by establishing similar law to guide the budgetary process. This law must ensure that the National Treasury designs the annual budget that allocates and distributes national resources equitably to the counties and the constituencies.

The responsibility of every MP would thereafter be to ensure no constituency is unjustly denied development resources. The senators would also ensure every county is fairly treated during the division of revenue debate.

Similarly, the MCAs must ensure the county budgets presented by the governors guarantee equity for every ward. The budget process at both county and national levels should be participatory.

It should be bottom up to ensure that development projects undertaken in the constituency and wards are people-driven and address their felt needs. At the same time, the process should allow both the National Treasury and the governor to introduce projects that make interventions on matters of national interests and regional importance, respectively.

This approach would then allow the MPs and MCAs to focus on their primary roles of legislation and oversight, respectively. It would also cure the duplication and conflict of interest by both.