The ‘Institute for Social Accountability’ and the ‘Centre for Democracy and Good Governance’, the two non-governmental organizations have filed an appeal against the judgement of the Court of Appeal that preserved some sections of the CDF Act, 2013. The two NGOs want the Supreme Court to declare the Constituency Development Fund unconstitutional. Earlier these organizations had also challenged the legality of the fund
The petition was filed by Katiba Institute’s Waikwa Wanyoike, which will be served to the National Assembly, the Senate, the Attorney General and the CDF Board. The CDF Act was declared unconstitutional in 2015, but last year, the National Assembly got a reprieve after the Court of Appeal ruled that only some sections of Act are unconstitutional.
Justices Erastus Githinji, Hannah Okwengu and GBM Kariuki ruled that Sections 24( 3 )(c), 24 ( 3 )(f) and Section 37 ( 1 ) (a) of the CDFA violates the principle of separation of powers but held that the remainder of the Act and the objective remain operational.
The judges said, “It was evident MPs still controlled the CDF board committee and influenced the selection, prioritisation of projects, allocation of funds and monitoring the implementation. The appointment of MPs to perform purely executive duties of enforcing CDFA is violate of the Constitution and principles of separation of powers and of national values and governance.”
After the organisations successfully challenged its legality, the Act had been amended to comply with the Constitution. Justices Isaac Lenaola, Mumbi Ngugi and David Majanja declared the entire Act unconstitutional and directed Parliament to rectify the unlawful sections within 12 months.