Supreme Court Declares CDF Illegal in Blow To Incoming MPs

Each constituency receives at least Ksh100 million every year and the legislators have used the kitty for community development projects.

A logo of the Constituency Development Fund (CDF). /TENDER YETU

The ruling overwrote the Court of Appeal's decision for the CDF Act 2013 to be enacted.

“A fund directed at service delivery mandate can only be constitutionally complaint if structured in a manner that does not entangle members of Legislative bodies and Legislative bodies in the discharge of the service delivery mandate however symbolic,” the judges including Justice Koome, Deputy Chief Justice Philomena Mwilu, Smokin Wanjala, Njoki Ndung’u and William Ouko said.

"A declaration is hereby made that the Constituency Development Fund Act, 2013 is unconstitutional. Each party to bear their own costs.

The Court of Appeal in December 2017 overturned a High Court ruling which had declared the CDF unconstitutional. This, therefore, means that CJ Koome had ruled that the Supreme Court was in agreement with the High Court's finding that threw away the CDF Act.

"We have also reversed the Court of Appeal on its findings on the issue of CDF and division of revenue, and have restored the finding of the High Court, that the CDF Act 2013 violates the constitutional principle on the division of revenue," added the ruling by Koome.

The CDF fund was introduced in 2003 after the late former President Mwai Kibaki took power in December 2002.

The fund was designed to support constituency-level, grass-root development projects and was aimed to achieve equitable distribution of development resources across regions and to control imbalances in regional development brought about by partisan politics. 

It targeted all constituency-level development projects, particularly those aiming to combat poverty at the grassroots. 

The CDF program facilitated the putting up of new water, health and education facilities in all parts of the country, including remote areas that were usually overlooked during funds allocation in national budgets.

The Act provided that the government set aside at least 2.5 per cent of its ordinary revenue for disbursement under the CDF program.

Three-quarters of the amount was divided equitably between Kenya’s 210 constituencies whilst the remaining 1/4th was divided based on a poverty index to cater for poorer constituencies.

It was renamed the National Government Constituencies Development Fund (NG-CDF). This meant that there was more money for schools and security-related projects such as police stations and police posts, as well as bursaries. 

The CDF Fund was accused of being a pet project of Members of Parliament (MPs), who over the years have been using it to buy loyalty and financial muscle to campaign against their opponents.