The development pace in the constituencies may slow down if the High Court finds that the Constituency Development Fund Act 2013 is unconstitutional.
A three-judge bench is hearing a suit in which the Institute for Social Accountability and Centre for Enhancing Democracy and Good Governance want a determination made on the law that governs more than Sh30 billion dispersed to the grassroots for development this year.
At the heart of the suit is the argument that the law requires that 2.5% of the annual revenue allocated to the CDF to be extracted from the total revenue before the 15% minimum to be allocated to counties is calculated contrary to Article 202 (1) of the Constitution, which requires the national and county governments to share the money equally.
However, the Constituency Development Fund Board, one of the respondents in the case, argues that it was impossible to allocate the money equally because the kitty takes into account the prevailing poverty index.
“We should not stifle initiatives not taken by county governments to address poverty and marginalisation. CDF is one of the many initiatives that enrich the Constitution. We should not entirely look for uniformity; that anything that helps the people should come from the counties,” said lawyer Waweru Gitonye.
The two civil societies have also taken issue with what they call ‘duplication of roles,’ noting that the projects that are assigned to be run by the development kitty are within the functions given to the county governments.
They argue that the involvement of MPs in county projects committees amounts to them encroaching on the mandate of the county units and therefore contravene the constitutional principle of separation of powers.
But the office of the AG told the court that the involvement of the legislators in the committees was only proper to safeguard the very duplication that the two petitioners allege.
In their court papers, the petitioners also argue that before the law was enacted there wasn’t enough public participation and point out that the input of the Senate was not sought and neither was that of the relevant cabinet secretary.
However, Mr Waweru told the court that the involvement of the Parliament constituted adequate public participation. There was extensive consultation with the public and other stakeholders.
“Public participation must not be given primacy that is unachievable. It is a loose term and every person cannot be given a chance to voice their views,” said Mr Waweru.