- The Court of Appeal reinstated the NG-CDF Act, 2015, giving lawmakers a major legal victory after overturning the High Court’s September 2024 decision
- Judges Daniel Musinga, Francis Tuiyott and AO Muchelule criticized the High Court for striking down the entire law without a thorough constitutional analysis
- The appeals bank ruled that the NG-CDF is within the jurisdiction of the national government as the expenditure is authorized through the Expenditure Act
The MPs have won a major legal victory after the Court of Appeal reinstated the National Government Constituency Development Fund (NG-CDF) Act, 2015, and overturned the decision of the High Court which had declared the law unconstitutional.
Source: UGC
In a judgment issued on Friday morning, February 6, a three-judge panel consisting of the president of the Court of Appeal, Judge Daniel K. Musinga, Judge Francis Tuiyott, and Judge AO Muchelule reversed the decision and order of the High Court issued on September 20, 2024.
How did the Court of Appeal decide on NG-CDF?
The appeals court found that the trial court erred in striking down the entire statute without conducting an adequate constitutional analysis.
It brings new life into the NG-CDF system, a fund that sends billions of shillings every year to states across the country for development projects.
The crux of the dispute was whether the NG-CDF Law violated the Constitution, especially regarding issues related to devolution, management of public funds and the doctrine of separation of powers.
In a September 2024 decision, the Supreme Court declared that the Act undermined the constitutional division of functions between the national and county governments and blurred the boundaries between legislative and executive responsibilities.
The Supreme Court had ruled that parliamentarians could not be involved, directly or indirectly, in managing development projects at the state level.
However, the Court of Appeal took a completely different view, stating that the High Court failed to carefully compare the impugned provisions of the NG-CDF Act against the specific text and structure of the Constitution.
The judges criticized the lower court for not clearly showing how the Act violated constitutional principles.
Where did the High Court go wrong about NG-CDF?
The appeals court further ruled that the petition to challenge the law was not waived by the amendments introduced in 2022 and 2023.
They emphasized that the existence of the amendment did not automatically cure or nullify the issues raised in the original petition, and therefore, the matter required a detailed decision.
In the matter of devolution, the appellate court found that the NG-CDF Law does not lack a constitutional structure or regulations governing the administration of devolution.
According to the judges, the fund is part of the national government’s expenditure and is authorized by the Parliament through the Appropriation Act, placing it within the authority of the national government.
The court also rejected the High Court’s conclusion that the law violated public finance regulations, noting that a law should not be overturned based on theoretical or speculative harm.
Source: Facebook
The judges found that the NG-CDF Law provides for several layers of financial management, including mandatory accounting procedures, audits by the Auditor General, and parliamentary oversight systems.
In addressing the separation of powers doctrine, the Court of Appeal disagreed with the Supreme Court’s broader decision that the entire Act was unconstitutional on that basis.
Instead, the bench found that only Section 43(9) of the Act was problematic, saying that it violated the doctrine of separation of powers and thus separated it from the rest of the Act.
By singling out the offending provision rather than overturning the entire law, the appeals court applied the principle of severability, allowing the rest of the law to stand.
What was Raila’s position on NG-CDF?
In a separate report, the former prime minister, the late Raila Odingacriticized MPs who opposed his stance on the NG-CDF, insisting that it should be abolished.
During the Constitution Day celebrations at KICC on August 27, he called for a review of the 2010 Constitution and laws establishing national institutions or funds whose responsibilities can be handled by counties.
He argued that the constituencies were not devolution units and said funds intended for local projects should be sent to county governments.
Read ENGLISH VERSION
Do you have an exciting story that you would like us to publish? Please contact us via news@tuko.co.ke or WhatsApp: 0732482690.
Source: TUKO.co.ke
