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Rarieda Member of Parliament Paul Otiende Amollo this week handed over to his constituent a complete house constructed under the Ondoa Nyasi Empowerment Program.

The MP is passionate about providing decent housing to impoverished households and has persistently pursued this ambitious housing agenda within his constituency from the time he was campaigning to be elected.

The conservative ODM Party MP has been hard-pressed to equal the ambitious development projects rolled out by his illustrious predecessors Raphael Tuju and Odero Gumbo.

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Although much is not said about it, Rarieda Constituency leadership has best utilized NG-CDF funds in infrastructural development among the six constituencies of Siaya County. Unlike in Gem and Alego-Usonga Constituencies, Rarieda has also kept to a minimum political gerrymandering with the sitting MP left to fulfil his roles without much political interference.

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As the founding chair of the forum of Constitutional Commissions & Independent Offices, Otiende Amollo leverages his resources to finance such endeavors, occasionally collaborating with allies to extend the reach of his impactful work.

Meanwhile, Members of Parliament are legally barred from having a hand in the management of funds disbursed to the constituency development kitty.

A new law which came into effect on December 29, 2023, has removed the window through which MPs could micromanage the cash.

President William Ruto set the changes in motion after his recent assent of the National Government Constituency Development Fund (Amendment) Act, 2023.

The amendments were necessitated to align CDF with the constitution after the High Court, the Court of Appeal and the Supreme Court declared the fund unconstitutional.

The new piece of legislation has repealed sections of the law that had put MPs at the centre of management of more than Sh50 billion taxpayers’ cash.

MPs have further been cornered by the new law with the provision that they can only execute national government projects.

Some counties have had cases of MPs fighting with governors over road projects, with the county bosses saying rural roads are devolved.

“A project under this Act shall only be in respect of works and services falling within the exclusive functions of the national government as provided in the constitution,” the new law states.

Before the law was in place, MPs were members of a constituency oversight committee, alongside a maximum of four of their appointees.

The team was recognised by law as overseer of CDF projects and could dictate terms at meetings of the CDF committee or subcommittees.

“A member of the constituency oversight committee may attend meetings of the constituency committee or its subcommittees, to ensure fair distribution of the fund,” the now expunged law read.

The committee was funded by taxpayers at one per cent of the annual allocation to the constituency — about KES 2 million.

Apart from the oversight committee, MPs nominated two persons to the main CDF committee, putting them ahead with at least seven votes.

Going forward, the first meeting of the CDF committee shall be convened by an officer of the NG-CDF board seconded to the constituency 120 days after the general election.

But that has since changed with the deletion of Section 53 and Section 53A of the National Government Constituency Development Fund Act, 2015.

Initially, MPs were to consult with the oversight committee and hold public forums for meetings on matters related to the fund.

The meetings were for “soliciting views, opinions and proposals from the public regarding CDF” and the feedback presented to the National Assembly.

MPs were empowered by law to use the public forums—held twice a year —to commission projects and issue cheques and other disbursements.

But litigants picked the matter on assertions that MPs, by controlling the cash, gave themselves powers of the Executive contrary to the constitution.

Two NGOs—the Institute for Social Accountability and the Centre for Enhancing Democracy and Good Governance—sued over the matter saying MPs were implementing projects yet also have budgeting powers.

The Supreme Court on December 7, 2022, sealed CDF’s fate in a ruling that the law which established it in 2013, and amended in 2015, was unconstitutional.

A bench of five judges of the apex court including Chief Justice Martha Koome, her deputy Philomena Mwilu, and Justices William Ouko, Njoki Ndung’u and Smokin Wanjala, held that MPs managing the kitty violated the principle of separation of powers.

“A fund directed at service delivery can only be constitutionally compliant if structured in a manner that doesn’t entangle members of legislative bodies, however symbolic,” the judges said.

The apex court affirmed the decision of the High Court and Court of Appeal which also declared the CDF laws unconstitutional.

Appellate judges Erastus Githinji, Hannah Okwengu, and GBM Kariuki ruled that “The appointment of MPs to perform purely Executive duties of enforcing CDF violates the Constitution and principles of separation of powers and national values and governance.”

The rulings threw MPs off balance, forcing them to amend the law to remove any entanglement they had with the constituency fund kitty.

MPs applied a give-and-take approach to the law which was sponsored by both Majority Leader Kimani Ichung’wah and his Minority counterpart Opiyo Wandayi.

MPs have locked the allocations in a way that bars the exchequer from reducing the same in any subsequent year.

“The budget ceiling for each constituency shall be an amount that ensures the total allocation to a constituency is not less than the amount allocated to the constituency in the preceding financial year,” the law states.

The law further recognises the 290 constituencies as established under Article 89 of the constitution, as national government service delivery units.

Lawmakers have also ring-fenced three per cent of the CDF allocations to go towards payment for utilities and to maintain digital hubs.

MPs, however, stand barred from sponsoring sports activities through CDF kitties. The expunged law regarded sports activities as development projects.

Instead, MPs would, for the next 10 years, take part in climate change mitigation activities “including afforestation, reafforestation, grassroots sensitisation and tree seedling production.”

The new law says the activities “may be considered as development projects…and the allocation to such activities shall not exceed five per cent of the total allocation to the constituency in that financial year.”

CDF committees would also have to seek the approval of the board to allocate funds to cater to bursary schemes, education days, teaching and learning activities and other learners’ social support programmes.

At least 40 per cent of the allocation has, however, been ring-fenced for bursaries.

In the new dispensation, the Public Service Commission would have a say in the appointment of the CEO and members (professionals) of the NG-CDF board.

MPs have been barred from scrutinising the academic credentials of the CDF committee, the role now taken up by the civil service recruiter PSC.

This is the second law with ramifications on the management of the constituency funds.

A recent legislation also radically changed how the funds are shared by the 290 constituencies.

Previously, constituencies were allocated a flat-rate amount, being the total divided among the units, less board expenses.

The new formula provides that 75 per cent of the allocated amount is divided equally among the 290 constituencies—being Sh131 million.

The rest of the cash is allocated based on the number of wards.

Seven constituencies were allocated Sh201 million, Sh192 million to 23 others, whereas 54 constituencies were allocated Sh184 million.

Majority—106—received Sh175 million with 79 others receiving as low as Sh166 million and Sh157 million for 21 others.

The developments have come at a time when MPs are protesting the delayed disbursement of the constituency funds.

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