For Online E-newspaper
The East African : Mar 9th 2015
The EastAfrican NEWS MARCH 7-13,2015 13 up to manage CDF and found that the National Assembly had its footprints all over the system. One, the Act had established a National Assembly Select Committee with sweeping powers over all matters CDF. The Committee was mandated to oversee not only “the implementation” of the Act but also the “policy and legislative framework for the fund.” It had to continually report to the National Assembly. Two, the fund was vested in the CDF Board, which was itself to report the National Assembly Select Committee regularly: Summarising all the project proposals received and the status of disbursements. Three, at the county lev- el, the Act created a County Project Committee composed of the Senator, Members of Parliament from that county, a county women representative, the Governor and a national government official at the county. Reviewing these structures, the High Court had no doubt that the CDF was a third entity “grafted from the national government that operates within the county governments but outside their structures.” That both Senators and members of the National Assembly were involved raised two constitutional problems: First, it threatened the division of functions between the national and county governments. Second, the Act conflated executive and legislative functions and so sapped and undermined the accountability mechanism envisaged under the Constitution. What is to be done? MPs complain that the Court has killed a good thing and that they will use their power to amend the Constitution to revive it. They are wrong on both scores. That something is good is not grounds for affirming its constitutionality. It may be a good thing to confiscate idle land from the rich and give it to the poor. It is not constitutional. Less obviously, the MPs have failed to see how their infatuation with CDF has nurtured incestuous ties with the executive and weakened oversight in the process. It is now commonplace that if the president wants to fund a pet project, he can usually have his way so long as he is willing to trade support for it with some freebies to MPs, CDF increments included. Second, because MPs see CDF as their ticket back to the House, they not only invest more time in matters CDF but also brook less scrutiny of its wastefulness. By assuming an executive function that they do not implement well, the MPs have undercut their own ability to scrutinise and hold the executive to account for those things that it implements poorly or dishonestly. MPs think that they can rescue CDF by amending the Constitution. Okoa Kenya seems ready to support this astonishing folly. Unfortunately, it is hard to see that an amendment will help. Not all constitutional amendments are permissible. Some constitutions make this explicit by having “eternity clauses,” that is, clauses that cannot be amended, no matter how large the majorities that support them. The Constitution of Tur- key, for instance, bars amendments that would change the secular, republican and democratic character of the country. In a famous case in 1971, the Turkish Supreme Court rejected an amendment to the Constitution that formally complied with all the procedures for amendment but contradicted the fundamental principles of the Constitution. In other countries, such as India, amendments to the Constitution have been rejected by the courts because they alter the basic structure of the Constitution. In the leading case of Kesavananda Bharati v. State of Kerala (1973), the Supreme Court ruled that three amendments, the 24th, 25th, and 29th, were unconstitutional because they violated “the basic structure of the Constitution.” To illustrate, if, for instance someone were to propose a constitutional amendment to convert India’s democracy into military rule, the court would hold such an amendment unconstitutional because it converts the basic structure of secular, civilian democracy into a non-consensual military rule. A constitutional amend- ment that restores CDF and retains MPs as implementers fundamentally violates the basic structure of checks and balance established by the Constitution. It may, for that reason alone, be held unconstitutional. And so long as this possibility exists, a CDF entrenched in the Constitution would still be challenged in Court. In short, whether with Okoa Kenya or on their own, any attempt by MPs to constitutionalise CDF is a fool’s errand. It were better if instead of flailing around the constituencies like development NGOs in search of projects, MPs now rose to the roles they were elected for in the first place: Representation, legislation and oversight.
Mar 1st 2015
Mar 16th 2015