If Parliament succeeds in sneaking in constitutional amendments proposed in late January, 2017, Woman representatives will be in charge of the Affirmative Action Social Development Fund, which is designed to cater for marginalized and special interest groups.
Other amendments proposes to create a CDF fund alongside the consolidated fund and an oversight fund for MPs and Senators respectively.
Main reason being that legislators have realized that under the current constitution, monies can only be administered by the executive in the national and county levels.
In 2016, Judge Lenaola found that CDF was unconstitutional because it did not fit into any of the Kenyan constitutional structures.
After the 2013 General Election, county woman representatives expressed a desire to be like regular members of Parliament, who directly oversaw development projects in their constituencies through the Constituency Development Fund (CDF).
The CDF was created via the Constituency Development Fund Act, 2003 to address poverty at the grassroots level by dedicating a minimum of 2.5 per cent of government revenue to grassroots development and the reduction of poverty.
The fund was hailed for bringing development closer to the people by pioneering development projects that were informed by the needs of the local people. It brought development to areas that were erstwhile neglected by the national government.
The good results notwithstanding, the structure, lack of oversight, and the fact that the fund was chaired by the area MP created the perfect environment for corruption, nepotism, and parochialism.
There were reports that MPs had appointed their relatives, friends, and political supporters to turn the fund into a cash cow and a campaign tool. Nearly all tenders were awarded through corrupt means.
In August, 2010, Kenyans promulgated a new constitution that created two levels of government, namely, the national and county governments.
It is for this reason that the High Court recently found that the CDF was unconstitutional because it did not fit into any of Kenya’s constitutional structures, especially the county governments.
The court suspended the invalidation of the Act for 12 months to allow the National Assembly time to restructure the fund to comply with the Constitution.
Structure notwithstanding, Article 95 of the Constitution clearly sets out the functions of the National Assembly as to represent the people of the constituencies and special interests, to deliberate on and resolve issues of concern to the people, to enact legislation, to allocate national revenue between levels of government, to appropriate funds for expenditure to the national government and other State organs, and to exercise oversight over national revenue and expenditure.
This article does not confer on MPs any management roles with regard to money.
It is, therefore, curious that the National Assembly and the Cabinet secretary in charge of Finance would support an amendment to the Public Finance Management Act that would have the effect of giving a woman representative a presiding role in the running of a national government fund. What is even more confusing is that this law is being operationalised only a few months after the High Court invalidated the CDF.
The principle of separation of powers dictates that the executive, legislative, and judicial powers of government be divided into different branches and not be concentrated in one. The rationale is that the branches must be separate and distinct because of the innately corrupting nature of power.
If the body that makes the laws is also in charge of enforcing them and adjudicating disputes, it would likely do so in a preferential manner, undermining the rule of law and basic fairness.
Power, in other words, must be checked or it will be abused. It thus follows that woman representatives, being members of the National Assembly that passed the Affirmative Action Social Development Fund Act, cannot participate in the running of the fund.
Our constitutional democracy has designed a system in which members of the National Assembly, woman representatives, and senators should provide legislative solutions to our problems and proper oversight of the executive functions.
Woman representatives should use their special seats to champion the causes of women, the youth, disabled people, and marginalised and special interest groups, by proposing Bills that support more allocations to these groups.
They do not need to preside over any funds to gain relevance. Such functions belong to the national or county governments.
The writer is an advocate of the High Court and a senior programmes officer at Article 19 – East Africa. firstname.lastname@example.org. Twitter: @kipdemas