WAINAINA: Why the law amendment to entrench NGCDF will collapse

Firstly, this Bill is an exercise in futility. The National Assembly must be held accountable for its questionable use of public resources. The Senate should reject this debate outright, given that the Judiciary has, through landmark rulings, clarified why the CDF contravenes the Constitution’s devolved system of governance.

Secondly, not all constitutional amendments are permissible, especially those that go to the heart of the constitutional architecture.

Thirdly, it fundamentally violates the basic structure of checks and balances as well as the principles of separation of powers and accountability established by the Constitution.

Fourthly, the constituency as a separate or distinct development and service delivery unit outside of the county is alien to the constitution. The constitution doesn’t envision a third-tier system where a unit is grafted from the national government to operate within the county but outside county governance and development structures. 

Fifthly, it infringes on the division and assignment of functions between two levels of government.

Counties are constitutionally self-governing and distinct. If the national government wants certain functions assigned to it to be done by the counties, the constitution has established a mechanism for function(s) transfer. Development projects in a constituency fall first under the jurisdiction of the county government, as a constituency is a unit under the county. The national government must respect and uphold Schedule Four of the Constitution 

Sixthly, the funds are duplication and waste of public funds. They interfere with the division of revenue, prudent use of public resources and principles of public finance. Funds are dismembering the shared powers, cooperative governance principles and the principle of revenue sharing enshrined in the constitution. Senate Oversight cost is already taken care of by budgetary allocation for the Senate, vide the Parliamentary Service Commission. 

Finally, the funds directly violate the core functions of Parliament and the Executive. They blur the constitutionally assigned functions to each arm of the state. For Parliament, the funds destroy the separation of oversight, legislation, budget approval and appropriation and representation.

The funds conflate the Executive and Legislative functions, contrary to what drafters and the people of Kenya provided in the constitution.