On Tuesday this week, another important case came before the Supreme Court.
I want to explain why it was important. It attracted little media publicity, competing as it did with news about presidential running mates and suchlike.
It was about the Constituency Development Fund, but raised some other important points.
The case started in the High Court in 2015, when a very strong bench of three judges (Isaac Lenaola, David Majanja and Mumbi Ngugi) decided that the Constituency Development Act of 2013 was unconstitutional.
Two years later, the Court of Appeal largely overturned the High Court decision, holding that only three small bits of the Act were unconstitutional. Finally, the dispute reached the Supreme Court.
ARE THERE PROBLEMS WITH CDF?
Constituency Development Fuds are found in many countries – though they are often controversial.
Many Kenyans think the CDF is a great idea, and a good number of MPs seem to think it is the most important part of their work.
Many MPs claim credit for the projects the fund supports but many people feel this is not the work MPs are elected for. They are supposed to make laws, debate matters of national interest, scrutinize national government policies, and treaties the national government enters into, and inquire into the conduct of public bodies.
A particularly important aspect of their work relates to public finance. The broad national budgeting plans must go through Parliament, and all budgets must be approved by Parliament. And their scrutiny of the behaviour of government institutions is much concerned with how public money is spent. The Auditor General reports to Parliament, which is supposed to study her reports very carefully.
To many people it has seemed wrong that if the MPs are to scrutinise how public money is spent, it is wrong that they should be also engaged in spending public money — how would their spending of money be scrutinised?
The High Court held that this was a valid concern. The Constitution gives the role of carrying out policies and projects at the national level to the national executive – not to Parliament and its members. This is part of the “separation of powers” – designed to prevent too much power in a limited number of hands, and make it easier for the various branches of government to check on each other.
The Court of Appeal agreed that some of the roles of MPs on the CDF were incompatible with the way the Constitution allocates powers. The National Assembly would like the Supreme Court to reverse the Court of Appeal on that.
Another issue was about whether the CDF fits into the constitutional scheme for allocating money between the national and county levels of government. The High Court said it did not. The Court of Appeal disagreed. I won’t go into the arguments here.
The High Court also held that the 2013 CDF Act was unconstitutional because it allowed a national body (Parliament) and its members to do things that – under the Fourth Schedule to the Constitution - were within the functions of the counties. (Examples would be building a cattle dip or a local clinic – both county functions.)
The High Court, for these and other reasons, held that the CDF Act was unconstitutional. But it gave Parliament a year to sort things out – so the Act was not immediately made ineffective. And Parliament did pass a new CDF Act in 2015. One of the things it did was to clarify that CDF must not do things within the exclusive powers of the country.
A point in the Supreme Court was the impact of this Act (the National Government Constituencies Development. Fund Act) on the 2013 Act. The 2015 Act does not say “This Act repeals the 2013 Act”. But the Supreme Court pointed out that it does say the CDF fund it sets up replaces that set up by the 2013 Act.
There is a general principle that a recent Act replaces any earlier Act that it is inconsistent with. “So” – you might ask – “how could the Supreme Court be asked to look at the constitutionality of an Act that no longer exists?” The absence of clarity on whether earlier Acts are repealed is a common failing in new Kenyans laws.
RIPENESS, MOOTNESS AND POLITICAL QUESTIONS
Courts will not consider every case that comes before them. They may have no jurisdiction over the case – for example the Environment and Land Court does not deal with labour disputes.
They won’t deal with a case where there is really no disagreement, or not yet. They say the issue is not yet ripe. If the issue used to be in dispute but is no longer, they may say it is now “moot” (Such a funny word, moot: we say something is a “moot point” when we mean it is disputed, but it is also used to mean there is no dispute.)
The Court of Appeal refused to deal with the question of whether the CDF Act trespassed on the powers of the counties. It was not ripe. The counties were not objecting to the Act. And the Constitution goes to considerable lengths to stress that governments should try to work cooperatively. And disputes should not go to court unless other means have failed – and there is an elaborate setup under an Act of Parliament to deal with disputes between county and national governments.
The NGOs that brought the case had “invented” a dispute. This problem also applied to the finance issue, and to the issue of whether the Senate should have been involved in the 2013 amendment to the CDF Act as well.
This aspect of the Court of Appeal decision was challenged in the Supreme Court. The NGOs cannot use the special dispute resolution mechanism for governments. And the Constitution gives anyone the right to go to court to challenge unconstitutional behaviour, including just on the basis of the public interest. The Court of Appeal’s approach would really undermine that right.
The Court of Appeal had another issue: It said these decisions, including division of functions, and division of revenue, are “political questions” and not for the courts. This importation of the political question (invented by the American courts) was also challenged. It robs the courts of their important role in ensuring political bodies obey the Constitution.
Ironically, one argument from the NGO side was that the Court of Appeal should not have heard the case at all. They said that, since the Act the High Court had ruled unconstitutional had been replaced by the 2015 Act, the Court of Appeal was wrong to continue to consider the constitutionality of a non-existent Act. The matter was moot!
WHY GO TO SUPREME COURT THEN?
The Court of Appeal decision was not just about a dead Act. It had serious wider implications. Its refusal to allow an inquiry in the courts into whether a law interferes with the constitutional allocation of responsibilities between national and county governments prevents Kenyans from using a valuable constitutional tool to ensure accountability of government, and particularly to protect devolution which is for the people not the governments.
The Court of Appeal’s judgment opened the way for future CDF Acts, and maybe other laws, to nibble away at devolution.
On their part, the National Assembly is not happy about the decision of the Court of Appeal that MPs’ role in the supervision of the CDF is unconstitutional.
Court of Appeal decisions, even if about dead Acts, still make law. The High Court must follow Court of Appeal decisions if similar issues of law arise, and even the Court of Appeal should follow its own decisions. Both sides wanted the Supreme Court to set things right as they see it.
The Court asked some interesting questions. Why not just give the CDF money to the counties? Asked Justice Ndung'u.
The Apex Court’s (to use an Indian expression) decision will be keenly awaited. No date was given for it.
