MPs received an early Christmas present yesterday after the government reinstated the National Government Constituency Development Fund (NG-CDF) with Treasury lining up Sh2 billion weekly disbursements starting December 9.

Speaker Moses Wetang’ula said the Attorney General had advised the National Treasury that the NG-CDF is legal and should be retained pending the ruling of a case currently before the High Court.

Wetang’ula said the AG had also advised that all the liabilities incurred by the NG-CDF before the Supreme Court declaration be settled by the National government.

“The Attorney General has advised that NG-CDF technically remains in force until the High Court or other superior court make express declaration, the National Treasury confirms that it will disburse Sh2 billion weekly from December 9, 2022,” said National Treasury Cabinet Secretary Njuguna Ndung’u in the communication delivered by the Speaker.

He added: “In light of the advice from the Attorney General, the National Treasury and Economic Planning confirms that it will commence disbursement to the NG-CDF by tranches of Sh2 billion on a weekly basis with effect from 9th December 2022, and will have disbursed a total of 44.289 billion by the 23rd week of disbursement,” read the statement.

Civil society

MPs had resolved to defy the Supreme Court ruling and voted to retain the NG-CDF using a new formula that will benefit populous constituencies and areas which are sparsely populated.

The apex court declared the fund illegal and unconstitutional bringing to the end a nine-year court battle between the Members of Parliament and civil society groups.

In their verdict, the judges found that the law allowing MPs to manage funds violates division of revenue and public finance law.

“A declaration is hereby made that the Constituency Development Fund Act, 2013 is unconstitutional,” the verdict given by the five-judge bench read.

“We agree with the reasoning adopted by the High Court to the effect that the CDF Act 2013 violates the principle of separation of powers and that the CDF Act 2013 is unconstitutional. We also agree with the reasoning of the Court of Appeal, but only to the extent that it upholds the position of the High Court.”

The case had been filed at the High Court in 2013, but it later escalated to the Supreme Court after the Court of Appeal overturned the High Court’s finding.

Ruto backing

President William Ruto waded into the debate and asked MPs to take measures to protect the Sh44.3 billion Constituencies Development Fund and establish an oversight kitty for Senators to police cash transfers to counties.

Ruto told the MPs to align the National Government Constituencies Development Fund (NG-CDF) to the requirements of the Constitution in order to save the kitty.

“I know the contribution the National Government Constituency Development Fund (NG-CDF) has made in making life better for our citizens,” Ruto said while addressing the inaugural joint sitting of the 13th Parliament.

“I believe there is a way NG-CDF can be aligned to the tenets of the Constitution.”

MPs had threatened not to pass the Supplementary budget as the dispute over the Fund after Treasury failed to disburse Sh44.3 billion meant for the fund.

The Fund currently operates under the National Government Constituency Development Fund (NG-CDF) Act 2015 which has not be declared illegal but a petition of a similar nature to the 2013 act has been filed in court.

Leader of Majority Kimani Ichung’wa told Parliament last week that although Treasury had assured the Sh2 billion disbursement, it was bound to delay due to other challenges affecting the government.

“So far the National Treasury and economic planning is yet to disburse any amounts in the current financial year. Subject to the opinion of the Attorney General, the National Treasury and the Economic Planning will embark on a disbursement plan aimed at disbursing Sh2 billion on a weekly basis,” said Ichung’wa.

Husltler fund

Apart from the court ruling, Ichung’wa said that delays in transitioning to the new government, the Russian-Ukraine conflict which had exerted pressure on fuel and commodity prices thus forcing the government to caution Kenyans from the crisis, as well as the worsening, market conditions which made it impossible for them to raise required resources from international market to fund the budget had also delayed the release of funds.

He also claimed that fuel subsidy, drought mitigation intervention and salary budget short fall as well as new priority programmes for the incoming government such as the hustler fund, fertiliser subsidy estimated at 117 billion had also made it impossible for them to release any funds.