Ward Development Funds, money allocated to wards within a county for development purposes, have been deemed illegal, with many raising concerns over their use.
In response to these concerns, the then Controller of Budget Agnes Odhiambo issued a circular in 2019 declaring WDFs illegal and directing counties to cease their operation.
Despite this directive, some counties have continued to allocate funds for WDFs, claiming they are essential for equitable distribution of development resources.
County assemblies have been increasingly pushing for the establishment of WDFs. However, these funds violate the principle of separation of powers enshrined in the Constitution.
The core function of county assemblies lies in legislation and oversight of the county governments. Members of the county assembly should focus on their primary responsibilities, which include enacting laws, approving budgets and holding the county executive accountable for its actions.
Unfortunately, many county assemblies are pressuring governors to create these illegal funds, often resorting to arm-twisting tactics.
Governors, facing mounting pressure from MCAs, seem powerless to resist the creation of WDFs, especially as more and more counties are adopting this practice.
In a landmark ruling last year, the Supreme Court declared the CDF Act illegal, finding it unconstitutional as it violated the principle of separation of powers. By extension, any fund managed directly by MCAs is deemed illegal.
Article 2 of the Constitution clearly states that the people may exercise power either directly or through their democratically elected representatives. This means that MCAs cannot directly manage public funds, as this would be akin to exercising power directly, bypassing the county executive.
A more appropriate approach would be to create a fund with a fixed allocation per ward every year, managed by a ward team from each and every ward, called a ward board.
This would ensure that funds are allocated equitably across all wards while maintaining transparency and accountability. MCAs could then directly oversee this fund, with a mechanism in place to remove errant ward board members.
The creation of WDFs is a clear attempt by MCAs to usurp the powers of the county executive and exercise direct control over public funds.
This is a dangerous precedent that undermines the principles of good governance and transparency.
Instead of focusing on their core responsibilities, MCAs should work collaboratively with the county executive to ensure that development projects are prioritised and implemented effectively for the benefit of all Kenyans.
The illegality of WDFs stems from several factors.
Firstly, WDFs contravene the Public Finance Management Act, 2012, which outlines the proper procedures for budget allocation and expenditure of public funds. Since WDFs are not recognised under this Act, their creation and allocation of funds are considered unlawful.
Secondly, the existence of WDFs creates a parallel system for project allocation and implementation, duplicating efforts and leading to inefficient utilisation of resources.
The County Integrated Development Plan (CIDP) serves as the primary document guiding development projects within a county. WDFs undermine the CIDP by establishing an alternative and unnecessary system.
Thirdly, WDFs circumvent the role of county assemblies, which are responsible for approving the county budget and overseeing project implementation.
By bypassing this process, WDFs grant individual MCAs undue control over the allocation and expenditure of public funds, raising concerns about transparency and accountability.
Transparency and accountability are further compromised by the secrecy often surrounding WDFs. This lack of openness can lead to misappropriation of funds and abuse of power by individual MCAs.
Furthermore, conflicts of interest arise when MCAs are involved in the selection and implementation of WDF projects. Their personal interests or those of their constituencies may influence project decisions, diverting resources away from more deserving areas.
The debate surrounding WDFs underscores the challenges faced by devolution in Kenya and the urgent need for clear guidelines and regulations to ensure the transparent, efficient and accountable use of public funds.
