Authored By: Morgan Okoth
University of Nairobi
Introduction
Kenya is a democratic state with three arms of the government comprising the executive, legislature and judiciary, each with different functions.[1]
The Constituencies Development Fund was established by the Constituencies Development Fund Act 2013. This Act gave the Members of Parliament(MPs) the powers of appointing eight members to the CDF Committee, convening ward-level meetings to appoint committee members, and sitting in the County Projects Committee to coordinate implementation of projects all over the country. These powers enabled them to directly participate in executive functions of implementation.
The National Government Constituencies Development Fund(CDF) Act 2015 together with its amendments in 2022 and 2023 was enacted to ensure constitutional alignment and redefine the legislative oversight. It made the funds exclusively applicable to the functions of the National Government. It ensured that the MPs had no direct involvement in the use and management of the funds in order to align with the doctrine of separation of powers.
Legal Framework for Separation of Powers Regarding the Legislature
The Constitution of Kenya 2010 has a whole chapter that outlines the various functions and powers of the three arms of the government.[2] Of interest are those of the legislature and to be specific, the National Assembly.
Its major mandates are representation, legislation and oversight.[3]
Case Law Analysis
Both the 2013 and 2015 Acts have been challenged before the Kenya courts, the main issue being their constitutionality. The 2013 Act was struck down by the Supreme Court in 2022. The 2013 Act was challenged as well before both the High Court and the Court of Appeal. The section that follows presents these courts’ determinations on the Acts.
Institute for Social Accountability & another v National Assembly[4]
In 2022, the constitutionality of the CDF Act 2013 was challenged in a petition before the Supreme Court of Kenya which held that the Act was unconstitutional.
The Act was struck on the grounds that it violated the doctrine of separation of powers by giving MPs the role of policy implementation, one exclusively meant for the executive. It also gave the MPs the power to act without any form of oversight as it is the MPs who bear the mandate of overseeing other arms of the government who would then actively engage in development projects, creating a vacuum.
National Assembly v Gikonyo & 9 others[5]
Following the amendments on the 2015 Act, the Court of Appeal delivered a well reasoned analysis while overturning the decision of the High Court that held the said Act unconstitutional.
This court held that using the constituencies as service delivery units did not undermine separation of powers doctrine in any way. This use of the constituencies was just a mode of decentralization and did not form a third tier of the government. This is because after the amendments, the NG-CDF could only be applied exclusively to functions of the National Government and the MPs role was strictly oversight and had no direct involvement in the use and management of the funds.
Currently, an appeal of the Court of Appeal’s decision above is yet to be determined by the Supreme Court.
Critical Analysis
As has been mentioned, the main functions of the National Assembly are representation, legislation and oversight.[6]Implementation of policies and development is an exclusive function of the executive arm of the government.
Through the CDF, the MPs encroached into the functions of executive. The rule of law[7] is a national value and principle of governance in Chapter two of the Constitution,[8] and binds all persons and state organs including the legislature. This is the main reason why the MPs should adhere to the law. Performing functions beyond their powers is a direct insult to the rule of law, and are therefore ultra vires.[9]
The doctrine of checks and balances nonetheless must co-exist with that of separation of powers.[10] Once each arm of the government has been assigned a specific function, the next question that should be answered is who will watch over that government, or who will ensure compliance.
The National Assembly has an oversight role over the National Government, and the Senate over the County Governments.
It has often been said that no man can be the judge of their own cause. This is anchored on the premise that justice should not only be done but must be seen to be done.[11] How can the MPs implement policies in their constituencies and oversee their operations at the same time.
The Court of Appeal’s opinion that using constituencies as service delivery units is a mode of decentralization rather than introducing a third tier of government is sound.
However, the issue that emerges revolves around the issuance of bursaries by the MPs. This has been the main reason why MPs fight fiercely to ensure that the NG-CDF remains legal.
Section 48 of the amended Act provides that funding of bursary schemes shall be considered as development projects.[12] In as much as the award of the bursaries is a function of the Constituency Committee, the MPs have assumed that role. They have been using this opportunity to advance their campaigns and brand them as their personal achievements during their tenure. They have been using the same funds to execute construction projects in various schools and to purchase school vans and buses.
As a result, their subjects then normally consider them to be performing exemplarily, not knowing that what they do is far beyond their powers. They have then turned around and manipulated the people during campaigns showing the work that they have done using the NG-CDF. This is contributed to majorly by ignorance of the people; majority do not even know the functions of the MPs. How can they hold their leaders accountable without knowing the responsibilities of those leaders.The Court of Appeal’s analysis only focused on paperwork failing to consider how the MPs conduct their duties within their constituencies.
There should be safeguards to ensure that the NG-CDF is used exclusively for the functions of the National Government, and by the constituency committee. This will prevent corruption which has been attributed to the MPs in managing the funds. It is the constituency committee that is accountable to the parliament and not the MPs.
Conclusion
The Judiciary has many times been criticized for practising activism or overreach(determining matters exclusively meant for other arms of the government).[13] On the other hand, the legislature is doing everything possible to manipulate the laws in order to formalize their illegal operations.
How can a body with the constitutional mandate of making laws be at the frontline of violating the same laws? What then would be expected of the other bodies who are bound by the laws made by lawbreakers?
Nobody in Kenya is above the law, the National Assembly included. The MPs should obey separation of powers doctrine, the principles of public finance and eliminate all forms of bias in their operations.
The MPs are not accountable to anyone as regards their use of the funds for development in their constituencies. This means that the funds can be embezzled by the MPs without any form of punishment.
The Constituency Development Fund has been instrumental in the development of various sectors in Kenya, one of them being education.[14] It is an undisputed fact that the fund is crucial for the people of Kenya. Just because it is key to development does not mean that its operation must continue, however illegal it might be. Just as its establishment was legitimate, its purpose must be served by a legitimate body as per the constitution.
Why would the National Assembly be so obsessed with the functions exclusively meant for the executive yet it has not been declared that the executive is unable, or lacks the capacity to perform such a function?
References
The Constitution of Kenya 2010
Statutes
Constituencies Development Fund Act 2013
National Government Constituencies Development Fund Act 2015
National Government Constituencies Development Fund Act, No. 30 of 2015 (as amended),
Case Laws
Gikonyo & another v National Assembly of Kenya & 4 others; Council of Governors & 3 others (Interested Parties) [2024] KEHC 10886 (KLR)
Institute for Social Accountability & another v National Assembly & 5 others [2022] KESC 39 (KLR)
National Assembly v Gikonyo & 9 others [2026] KECA 214 (KLR)
R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256
Secondary Sources
A.W. Bradley and K.D. Ewing, ‘Constitutional and Administrative Law’ (Pearson Longman, 15th edn, 2011)
Carolyne Nekesa Nasambu, ‘Constituency Development Fund and Education Development in Kenya’ (International Journal of Education and Research, Vol 2 No 10, 2014)
M.J.C. Vile, ‘Constitutionalism and the Separation of Powers’ (Oxford University Press, 1967)
Montesquieu, ‘The Spirit of the Laws’ (Cambridge University Press, 1989)
Nyokabi Kamau, ‘Judicial Activism and Constitutional Interpretation in Kenya’ (Strathmore Law Journal, Vol 3 No 1, 2017)
[1] Montesquieu, ‘The Spirit of the Laws’ (Cambridge University Press, 1989) 156–157
[2] Constitution of Kenya 2010, chapter 8
[3] Constitution of Kenya 2010, articles 95(1)(3)(4)(5)
[4] Institute for Social Accountability & another v National Assembly & 5 others [2022] KESC 39 (KLR)
[5] National Assembly v Gikonyo & 9 others [2026] KECA 214 (KLR)
[6] Constitution of Kenya 2010, articles 95(1)(3)(4)(5)
[7] Constitution of Kenya 2010, article 10(2)(a)
[8] ibid
[9] A.W. Bradley and K.D. Ewing, ‘Constitutional and Administrative Law’ (Pearson Longman, 15th edn, 2011) 647
[10] M.J.C. Vile, ‘Constitutionalism and the Separation of Powers’ (Oxford University Press, 1967) 13–14
[11] Lord Hewart CJ in R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256, 259
[12] National Government Constituencies Development Fund Act, No. 30 of 2015 (as amended), section 48
[13] Nyokabi Kamau, ‘Judicial Activism and Constitutional Interpretation in Kenya’ (Strathmore Law Journal, Vol 3 No 1, 2017) 45
[14] Carolyne Nekesa Nasambu, ‘Constituency Development Fund and Education Development in Kenya’ (International Journal of Education and Research, Vol 2 No 10, 2014) 3
