Supreme Court declares CDF unconstitutional

The Supreme Court on Monday, August 8, declared Constituency Development Fund (CDF) illegal and unconstitutional.

In a judgment delivered by a five-judge bench led by Chief Justice Martha Koome, it was found that the law setting up the fund was faulty, and allowing Members of Parliament (MP) to manage funds offends division of revenue and public finance law.

"The CDF Act 2013 as amended by the CDF (Amendment) Act, 2013 is unconstitutional on account of procedural lapses in the law-making process," the judges said.

While overturning the Court of Appeal decision that held the CDF to be legal, the Supreme Court said it was unconstitutional for the national government to extend its mandate to counties.

The court held that the CDF Act 2013 offends the division of functions between the national and county governments.

"The CDF Act 2013 offends constitutional principles on the division of revenue, public finance, and separation of powers," the five-judge bench ruled.

Supreme Court upholds High Court decision

The judges also upheld the decision of the High Court that the constitution had been violated by the failure to involve the Senate when the law was amended.

"We have faulted and reversed the Court of Appeal’s restrictive approach in interpreting the law in relation to powers and functions of the county governments. The court found that the CDF did not violate the division of power between the two levels of government.

"We have 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," the apex court ruled.

Two lobby groups namely the Institute for Social Accountability and the Centre for Enhancing Democracy and Good Governance challenged the constitutionality of the Constituency Development Fund Act, 2013.

They challenged the Fund on grounds that the CDF Act 2013 offended constitutional principles on the division of revenue.