Why Kenyans and MPs are addicted to NG-CDF

As an initial active participant of the anti-CDF litigation and a current moral supporter, I read the Court of Appeal’s judgement that resurrected the cleverly renamed “National Government” Constituency Development Fund with resigned dismay.

One has to give it to Parliament; the disguise on the slush fund’s face has paid dividends. It reminds me of Aesop's fable about the kid goat and the wolf.

In the Aesop version, all attempts to disguise the wolf so that it would enter the door when Mother Goat was away were unsuccessful, as the kid goat, well trained by its mother, could see through the disguise. That has been the record of the CDF litigation until the recent Court of Appeal judgement.

In the Kikuyu version of Aesop’s fable, the wolf, having found a way to cover every aspect of his “wolfness”, including eating live bees to disguise his voice, manages to fool the kid goat, who opens the door and gets gobbled up.

First, let us be clear, CDF, with all its warts, was a great invention in 2003. To its credit, CDF was principally responsible for equitising some development across the country.

But post 2010, this role was taken away by devolution. Every corner of this country is now constitutionally entitled to an equitable allocation of revenue.

The principal problem is not, however, this aspect of the CDF. No Kenyan has a problem with a constituency-based development fund if it is legitimately run by the national government.

As the Court of Appeal correctly states, the constituency is a unit of decentralisation, and the national government can choose how to decentralise its functions. But the CDF is not a national government fund; it is an MP’s fund.

Anyone with doubt only needs to drive around any constituency and see the CDF billboards on projects; they plainly and loudly state that these are the works of the local MP. It is no wonder even the pollsters speak about my good friend Ndindi Nyoro “being the best performer at using CDF”.

The NCDF Act attempts to disguise the MP’s role by providing that it is not the MP who is involved in the process of execution but an “independent” Constituency Development Committee.

However, MPs approve all members of the committees and approve all projects to be implemented by CDF. Aesop’s Kid goat cannot see through this disguise and the constitutional quagmire it introduces.

Even more objectionable is the oversight question on CDF. Constitutionally, all national government funds and projects are overseen by the National Assembly, while the Senate oversees funds and projects by the governors. The myth that CDF is a national government programme results in the National Assembly overseeing CDF, a fund which it runs!

I will be an East African and quote the Luganda proverb “ensima tesala gwabikira”. A monkey cannot be a judge over matters of the forest.

It essentially means that CDF has no oversight. You will never hear any MP, or any CDF manager for that matter, summoned by the PAC to respond to Auditor General queries, the way governors are hauled to the Senate.

That is why the perceptive know that this is a slush fund for MPs. As the case once again heads to the Supreme Court and attempts are made to constitutionalise the CDF, maybe it is time for a pragmatic approach and settlement.

Maybe it is time we all accepted that MPs, and even their constituents, are now addicted to CDF and that a “cold turkey” elimination of the Fund is not realistic and even desirable.

It may be wiser to exit the Fund over time, reducing allocations over a set period, and allowing every successive crop of MPs to rethink their role without this lifesaver.

To be honest, Kenyans are now unable conceive of a Kenyan MP who cannot provide bursaries, build the occasional murram road and equip the odd police station. While CDF’s continued existence offends constitutional principles, we are a nation that has accepted that constitutional prescriptions are suggestions, not mandates.

So why discriminate against MPs? Let them also keep a piece of the action. To Wanjiru Gikonyo’s TISA and Katiba Institute, you have fought the good fight, but I think a tactical settlement will allow you to move to more winnable pursuits.

-The writer is an advocate of the High Court of Kenya