In August 2022, the Supreme Court of Kenya had struck down the Constituency Development Fund [“CDF”] Act of 2013 (The Institute for Social Accountability vs The National Assembly). In essence, the CDF was a scheme through which funds from the budget were allocated for “developmental” work at the constituency level, and routed through a Committee that was under the effective control of the constituency MP. Readers will be familiar with such schemes from different countries around the world, including India’s MPLAD scheme. The Supreme Court struck down the CDF Act primarily on two grounds: first, that in turning representatives (MPs) into administrators, it violated the separation of powers; and secondly, that in setting up an effective “third level” of government, it violated the scheme of devolution under the Constitution, and – in particular – threatened to usurp the powers and functions of county governments (for a more detailed analysis, see here). The judgment was particularly noteworthy for its reassertion of the separation of powers as a core constitutional concept, and its rejection of a kind of “blurring” of lines between executive and the legislative functions, to the detriment of the latter. This was particularly important in the Kenyan context because, as with many other post-colonial nations, Kenya had seen a progressive gutting of its Parliament over the years, and a concentration of power in the hands of the executive. An important part of the 2010 Constitution’s transformative vision was to restore this separation of powers, in particular, through restoring the roles and functions of the legislature.
However, at the time the Supreme Court delivered its judgment in 2022, the CDF Act of 2013 had already been replaced. In its place, there was the National Government Constituencies Development Fund Act [“NG-CDF”], which had been enacted in 2015. The NG-CDF Act had been ostensibly passed to address the flaws in the 2013 Act, and which had been at the heart of the constitutional challenge to it. It sought to do so through various provisions that – it was argued – achieved an adequate separation between the MP and the CDF Committee (thus taking care of the separation of powers problem), and also limited the CDF’s scope to developmental functions that were constitutionally within the national government’s domain (thus taking care of the devolution problem). There were further amendments in 2022 and 2023, which had the same purpose.
The question was whether this was enough, in light of constitutional principles, and the Supreme Court’s articulation of them in the CDF Case. In a judgment delivered on 20th September 2024 (Wanjiru Gikonyo vs National Assembly), the High Court of Kenya held that it was not, and struck down the NG-CDF Act.
At a basic level, as the Supreme Court had already held before, the problem with the NG-CDF Act remained that it treated the constituency as a unit of service delivery rather than a unit of representation. (paragraph 92). This undermined both devolution (in that it created a third site, or level of governance) as well as the separation of powers. More specifically, on the issue of devolution, the Court noted that 5% of the Fund – known as “emergency reserves” – was unallocated, and used for emergencies (section 8) (paragraph 109). In this, it was a replica of existing emergency funds under the respective control of the county and national governments, only this one was under the control of the CDF Committee (para 112). Consequently:
… the Fund has the potential of creating confusion in the implementation of projects by the two levels of government. Secondly, duplication of funding for the same project is inevitable leading to wastage of scarce public resources. Lastly, the Fund fosters a state of lack of clarity as to which level of government is responsible for which project thereby compromising accountability. (para 114)
Consequently, despite the argument that the NG-CDF Act had clearly delineated and limited the use of CDF funds for national government functions, the Court found that it was not so. It went on to find, in a subsequent part of the judgment, that under Section 54 of the Act, there remained the potential for developmental work under the CDF to encroach on county government functions, in particular, because of the phrase “nothing in this Act shall be taken or interpreted to mean that an area may be excluded from any other development programmes.” (para 164) While the Court couched this as an issue that impacted the public finance provisions of the Constitution, it is also – evidently – a devolution issue.
On the separation of powers, the Court found that while the National Assembly did perform oversight functions with respect to the appointment of members to the NG-CDF Board and the Committee, under Section 43(9) of the Act, the Fund Account Manager’s tenure as custodian of the records would be “during the term of the Parliament.” In other words, CDF remained tied to Parliamentary terms, leading to the conclusion that “the Member of the National Assembly remains in the shadows of the Fund, controlling its operations, however remotely, at the constituency level.” (para 128)
Having therefore concluded that the 2015 NG-CDF Act was unconstitutional, the final question was that of the remedy. Two judges out of three (Kimondo and Aburili JJ) held in view of various ongoing projects, and to avoid serious disruption, the CDF would cease on June 30, 2026. Thande J. held, however, that in view of the demonstrated unconstitutionality, the CDF would continue only until the end of the present financial year, that is, June 30, 2025. No doubt, we will see appeals from both sides on this point!
Looking at the case as a whole, there is no doubt that the High Court’s burden was lightened by the Supreme Court’s 2022 CDF judgment, which had laid a significant amount of groundwork, and had articulated the principles on both devolution and the separation of powers. That said, however, there was still substantial amount of work to be done, as the NG-CDF did appear to address some of these issues, at least on a formal level. The High Court therefore had to work through the provisions of the 2015 CDF Act to determine that despite these changes, at its heart, the problems of devolution and separation of powers had not gone away. The reason for this is that, once you strip away the superfluities, no matter what the legal design, the core of the CDF is its treatment of the constituency as a unit of service delivery. What the High Court recognised was that no amount of formal separation and other palliatives could mitigate this fundamental constitutional distortion: the moment you treat the electoral constituency as a unit of service delivery, it will create a third level of government (encroaching upon county functions), and it will turn legislators into fund-patrons. The blurring between legislative and executive functions, and between the levels of government, is baked into that initial design choice, from which everything follows. The High Court was astute in cutting through all the other NG-CDF provisions, and getting directly to the heart of the matter.
This also means that further legislative amendments or new CDF Acts are futile: without treating the constituency as a unit of service delivery, it cannot be a “constituency development fund.” Indeed, it would not make sense otherwise: stepping back for a moment from the law, the entire purpose of constituency development funds is to turn elected representatives into fund managers and dispensers of financial patronage. If you take those powers away, such a fund would lose its raison d’etre for existing. This is, once again, an insight that the Supreme Court grasped in 2022, and which has been reiterated now by the High Court.
What happens, then, if there is an attempt to amend the Constitution to insulate the CDF from further legal challenges? In its judgment, the High Court rejected a basic structure challenge, on the ground that the Supreme Court had rejected the doctrine in the BBI Case. As I have written previously, however, the actual opinions in the BBI Case are more complex, and that the majority did not reject the prospect of judicial review in case of an attempt at constitutional evisceration (you may not call it “the basic structure”, but that is neither here nor there). There would be little doubt that a constitutional amendment that tries to get over these judgments – in other words, which decrees constituencies to be units of service delivery – will amount to a fundamental unravelling of the governance structures under the 2010 Constitution. It will therefore be worth seeing whether, at that point, the Courts will be more amenable to an invitation to review such an amendment, on the basis that it amounts to constitutional evisceration.
That, however, is for the future. For the present, the High Court’s judgment – when read alongside the Supreme Court’s judgment from 2022 – is an instructive account of the role that separation of powers and devolution play in restorative constitutionalism, that is, in restoring a more distributed structure of power as opposed to the imperial presidency. In particular, the Courts’ alertness towards how a blurring of functions can only benefit the executive at the cost of the legislature, and how such a function creep can be both direct and indirect, is particularly valuable. In this context, these judgments provide important conceptual tools to understand – and defend – the significance of separation of powers and devolution in modern constitutionalism.