BENEDICT TOROITICH: CDF is indispensable, it needs to be cemented in law

Articles 94 and 95 assign MPs legislative and oversight responsibilities. Article 96 assigns senators the duty to protect counties and oversee the revenue allocated to them, explicitly prohibiting senators from spending those funds themselves.

However, a legal gap remains regarding the true status of the National Government Constituencies Development Fund, even though it has profoundly transformed Kenyan society, predating the advent of devolution.

The CDF was established with good intentions, given the political and economic context at the time. Yet, the constitution offered a more comprehensive solution through devolution, the Equalisation Fund and other mechanisms. The fund was designed for social transformation, but a few miscreants have mismanaged it, creating a narrative of grand theft.

Unfortunately, good intentions do not always prevent poor outcomes. Beyond being a developmental fund, some lawmakers derisively dubbed it the Legislators’ Enrichment Fund, because some elected representatives overstepped their mandates and assumed roles as implementers, managers and executive officers of the fund. This blurred the concept of Parliament as an oversight institution.

We now have 349 CDF managers in the National Assembly-people who hold parliamentary seats not because they are dynamic representatives capable of holding the Executive accountable or articulating their constituents’ concerns, but because their campaigns hinged on the (mis) administration of CDF in their constituencies.

Renaming CDF as NG-CDF was intended to revive it and anchor it within a legislative framework, but it still lacks firm legal grounding. In Kenya today, few issues intertwine legality, politics and public perception as tightly as the debate around NG-CDF, the National Government Affirmative Action Fund and the proposed Senate Oversight Fund.

These funds have become household names and are seen as lifelines. They finance bursaries, community halls, women’s projects and sometimes fill gaps where county or national governments fall short. Because of this, they enjoy significant public goodwill. Yet, this goodwill exists alongside a silent legal storm.

Despite this legal ambiguity, NG-CDF has endured. Courts have declared it unconstitutional-not because it lacks utility or fails to improve livelihoods, but because it grants MPs executive powers. But do MPs truly wield sweeping powers over the fund? Not quite. In reality, they act more as patrons, while implementation is carried out by officers appointed by the NG-CDF board.

Perhaps MPs’ ‘executive’ role allows them to advise on which classrooms get built, which roads get repaired, or which students receive funding-all advisory roles rather than implementation. Legally, this breaches their mandate. For clarity’s sake, I propose that the fund be firmly anchored in law.

NGAAF, associated with women representatives, walks a similar tightrope. It relies on the constitution’s Affirmative Action clause but dangerously places implementation power close to legislators. The proposed Senate Oversight Fund threatens to do the same-giving Senators money under the guise of ‘oversight’, but opening a backdoor to resource control, which is not envisioned in their constitutional role.

MPs want to build. Women reps want to empower. Senators want to oversee-but with cash in hand. Yet the constitution whispers firmly: You were elected to watch, not to do.

Can we keep giving funds to those meant to oversee others who already have funds to spend? It sounds noble-after all, who wouldn’t want more bursaries and faster projects? But if we blur these lines too far, who then watches the watchers?

Currently, a national tug-of-war unfolds. On one side stands the constitution-firm, weathered, holding its rope with both hands, defending the architecture of law and accountability. On the other side are cartons full of bursary forms, muddy boots of youth groups and posters of upcoming CDF-funded bridges-all being pulled by MPs, women reps and now senators.