The Supreme Court has today declared the National Government Constituency Development Fund (NGCDF) Act unconstitutional.
In a judgement delivered by Chief Justice Martha Koome, the apex court ruled that the CDF Act enacted in 2013 and changed in 2015 allowed Members of Parliament to manage funds which affronted the division of the revenue and public finance law.
The ruling reversed the Court of Appeal’s decision that had initially deemed the CDF Act 2013 to be enacted.
“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,” read part of the ruling by Koome.
According to the Supreme Court, the act that created it violates the principle of separation of powers.
At stake was the control of more than Sh50 billion that legislators were expecting to be allocated to the CDF by the Treasury from the national governments.
Civil society groups that include The Institute for Social Accountability (Tisa) and the Centre for Enhancing Democracy and Good governance went to the courts urging the top court to nullify the entire CDF Act and declare it unconstitutional.
The High Court had declared the Act unconstitutional in 2015 but Parliament moved to the Court of Appeal and successfully had the decision reversed.
In 2013, the dispute started at the High Court and escalated to the Supreme Court after the Court of Appeal overturned the High Court’s finding that the CDF was unconstitutional in its entirety.
A declaration would later be issued by a supreme court that only sections 24(3)(c), 24(3)(f) and 37(l)(a) of the CDF Act were unconstitutional.
The judgment dated November 24, 2017 prompted the two NGOs to petition the Supreme Court to render itself on the matter.