Public interest litigation: The CDF and affirmative action
One of the greatest aspirations of Kenyans before the new order was to devolve power from the centre to the periphery. All government administration was concentrated in Nairobi. Not even local government was effective as it was in the strong grip of the Ministry of Local Government.
The absence of devolution of power and the desire for equitable distribution of resources led to the creation of the Constituency Development Fund: intended for development at constituency level, with each member of Parliament playing a crucial role in management and implementation of the fund. So important was the fund that it came to be used as a yardstick for measuring the effectiveness of the leadership of a member of parliament.
The new constitution precipitated a complete paradigm shift in governance and use of public resources. Resources and responsibility for using them are supposed to be shared between the national and the county governments. This is set out unambiguously in the constitution to ensure a spirit of cooperation with as little as possible overlap in their functions. However not everyone was ready to shift.
The CDF was originally set up by the Constituencies Development Fund Act, 2003. This allocated 2.5% of the annual government budget for financing of grassroots infrastructure in the constituencies. The National CDF Board and constituency level committees were established with the respective Member of Parliament being the Committee Patron.
In 2007 major changes took place, including the formation of a fully-fledged state corporation known as the CDF Board to replace the National Committee to manage the Fund including approving projects. And in 2013 a new Act replaced the old.
Going to court
Two NGOs went to court, challenging the CDF. First they felt that the fund violated the constitutional principle of prudent use of public resources. And they argued that the law establishing the fund was not enacted in line with constitutional procedures.
Most important, they thought that the fund undermined the operation of county governments. It involved a national fund, and members of national institutions—like the MPs—were proposing and carrying out projects that were the responsibility of the counties.
In February 2015, three judges of the High Court (Judges Mumbi Ngugi, Lenaola and Majanja) held that the CDF Act had not been properly passed because the Senate had not been involved. They ruled that the famous CDF was unconstitutional as it allowed members of parliament to do work that is supposed to be done by the county and national government.
The judges also said that the constitution allocates tasks to the executive, parliament and judiciary and each arm of government should perform its role without encroaching on the mandate of the other. The court observed that what members of parliament were doing could be done by the county government through the governor and his executive committee. Members of Parliament have roles in overseeing use of public money for development. This is not compatible with actually undertaking development projects.
The arrangement introduced by the CDF of having Members of Parliament getting involved in the implementation of the development agenda at the county level undermines the county government and especially the role of the county executive.
The judges observed that at the county level the Governor and the County Executive Committees are in charge of development policies in the county. They also observed that the fund could be administered using the existing structures within the county. This they said would minimize cases of duplication of work at the county.
They affirmed that division of national revenue is only shareable between the National and County Governments. The judges observed ‘’We have combed through the provisions of Chapter Twelve of the Constitution which deals with public finance and we must agree with the petitioners that nowhere is it contemplated that a constituency shall be one of the beneficiaries of the national revenue before it is divided between the national and county government’’.
The court gave Parliament a year for the transition and how the projects that were already under the fund to complete. . The National Assembly appealed to the Court of Appeal, underlying the desire of parliament to continue having control of the fund. The appeal is still pending.
The Affirmative Action Fund
Meanwhile, the Cabinet Secretary Finance made the Public Finance Management (Affirmative Action Social Development Fund) Regulations to give women county representatives in parliament their own fund. This had a structure like the CDF one, and the Woman Representative was to be the county committee patron. The funds were to be used at county level to complement the CDF with a special focus on certain groups who required special attention or affirmative action—such as women, youth, persons with disabilities, children and the elderly..
The same petitioners challenged this fund for similar reasons as in the CDF case. They argued that the fund was created without following the law, not adhering to good governance, for failure to facilitate public participation, for imprudent use of public finance, and violating the principles of separation of powers.
The petitioners urged the court to declare that the Cabinet Secretary Finance went beyond his powers and abused his office. They also asked the court to find that the Cabinet Secretary had ignored the decision of the court in the CDF case .
The Affirmative Action Fund had been allocated Ksh 2.3 billion for the 2014/ 2015 financial year and Ksh 2.1 Billion for the 2015/2016 financial years. The National Assembly and the affirmative action fund were determined to use any means to retain the money.
The court’s attention was drawn to the very new Public Finance Management (National Government Affirmative Action Fund) Regulations. These Regulations had been gazetted only about three days before the hearing date of the case that was challenging the 2015 Regulations. This move by the Attorney General put the court in an awkward position and the judge had no option but to dismiss the petition but awarded costs against the Attorney General
The judge (Judge Onguto) was not pleased. He said ‘The Petitioners are private citizens. They have previously enjoyed a measure of success in this court as well as in this particular Petition. The instant [meaning this] Petition was launched in October 2015. The court together with the parties went through the motions and imposed a deadline for the resolution of the dispute. Responses were filed. All the parties prepared and got ready for trial. Voluminous submissions were filed. Oral arguments were made lasting some hours. Then the Attorney popped up with the NGAAF Regulations 2016 and all the issues founded above suddenly became abstract and academic’’.
The judge said it was tempting to infer that the Attorney General wanted to derail the Petition. And, said the court, ‘’There is even a stronger temptation to conclude that the Attorney General figured out that the impugned AASDF Regulations 2015 had constitutional deficiencies. In the latter eventuality, the Attorney General was under a duty to ensure that any constitutional deficiencies and inconsistencies were addressed and amended without delay’’.
In both these cases the challenge was not to the whole idea of funds for local development. —which may be a noble idea—but to the way the state was implementing the two funds, undermining devolution, and undermining the way the constitution allocates different responsibilities to different arms of government. It was a clarion call through public interest litigation to defend the constitution
So what happened to the CDF? A new Act was passed, though only after the court had given Parliament more time. But the original petitioners believe that the new law still does not satisfy the constitution. So they are back in court.
The author is Litigation Counsel with the Katiba Institute.