The High Court has declared the National Government Constituency Development Fund (NGCDF) unconstitutional.
In a ruling delivered on Friday, September 20, a three-judge bench ruled that the constitution of Kenya does not give the National Assembly the powers of undertaking functions at the constituency level.
The three-judge bench consisting of Judge Kanyi Kimondo, Justice Mugure Thande and Lady Justice Roselyne Aburili also found that the NGCDF Act created a duplication of activities or wastage of scarce resources.
However, two of the judges voted to give the fund more time to allow completion of pending projects. As per the final ruling, the NGCDF will cease functioning on June 30, 2026, at midnight.
“The National Government Constituencies Development Fund 2015 as amended in 2022 and 2023 is hereby declared unconstitutional,” Judge Kanyi Kimondo read in the ruling.
“The NGCDF and all its projects, programs and activities will cease to operate on June 30, 2026, at the stroke of midnight.”
Why judges declared NGCDF unconstitutional
Justice Mugure Thande who dissented on the decision to extend NGCDF’s lifespan argued that extending the fund beyond the financial year would allow the continuation of an illegality.
On the question of whether the NGCDF Act of 2015 violates the structure of devolution, the judges emphasized the importance of devolution in Kenya and took issue with duplication of functions.
The Court added that creation of the constituency as a delivery level affected the structure of devolution and hence it amounts to wastage of resources.
In addition, the bench took issue with the implications of NGCDF to the doctrine of separation of powers.
According to the judges, the role of MPs as stipulated in the constitution is legislation, representing their constituents and oversight but NGCDF saw them turn to service providers.
Other concerns highlighted in the ruling include the failure to involve the Senate in passing the NGCDF Act despite its implications to devolved functions.
The case was filed by the Institute for Social Accountability and the Centre for Enhancing Democracy and Good Governance.
MPs struggle to save NGCDF
The Friday, September 20, ruling is another blow to the CDF which has faced several legal tests in its history.
In 2022, the Supreme Court dealt a major blow to the fund after declaring the Constituency Development Fund (CDF) Act 2013 unconstitutional.
The country’s apex court found that CDF was a violation of the separation of power doctrine while highlighting other concerns regarding division of revenue as guided by the Public Finance Management Act.
The Supreme Court ruling in 2022 was a culmination of a protracted court battle that commenced in 2015.
Members of the National Assembly would then introduce another bill in 2023 that was a modification of the NGCDF Act 2015.
The bill passed in 2023 enhanced the CDF kitty to increase allocation of resources towards scholarships, school feeding programs, among other functions in the education sector.
President William Ruto has also been on record advocating for the use of CDF to bridge development gaps in the grassroots level through projects including construction of digital hubs and other IT-programs.
Whilst the CDF has been lauded for some advancements realized in the education sector, critics have taken issue with the distribution of funds under the MPs-led bursary programs.
A proposal by Speaker Moses Wetangula, for example, recommends the merging of bursaries and scholarships in the education sector to one, a move that would affect one of the major CDF functions.
National Assembly Speaker Moses Wetangula addresses MPs at parliament buildings. photo/National AssemblyNational Assembly Speaker Moses Wetangula
Reforms the House of Lords : What Britain will lose when Starmer guts the House of Lords
Close observers of the news could be forgiven for thinking that it’s currently September 1999, not 2024. Not only are Oasis back in the spotlight, a barrister from north London with no previous ministerial experience sits on a three-figure majority and a Labour government is trying – again – to reform the House of Lords.
Under the Weatherill Amendment in the House of Lords Act 1999, Tony Blair’s government reached a compromise whereby an electorate consisting primarily of 759 hereditary peers voted to save 92 of their number. In one of the stranger elections in British political history, turnout was recorded at 56.6 per cent, only marginally lower than that for the general election in 2001.
A quarter of a century later, the government is coming for the remaining 92, citing unfinished business. “The hereditary principle in law-making has lasted for too long and is out of step with modern Britain,” says Nick Thomas-Symonds, Minister for the Constitution. “The second chamber plays a vital role in our constitution and people should not be voting on our laws in Parliament by an accident of birth.”
Many will sympathise with a position that was clearly outlined in Labour’s manifesto and King’s Speech. Britain is one of only two countries in the world retaining a hereditary element in the legislature – the other is Lesotho.
It has, however, left Sir Keir Starmer open to charges of short-termism, party politicking and hypocrisy. There are no signs of other reforms called for by constitutional experts such as Sir Vernon Bogdanor, including statutory restraints on the Prime Minister’s power of patronage, public financing of parties and limits on political donations. And no one is suggesting removing the 24 Anglican Bishops who voted against the Conservatives 98.2 per cent of the time in the last session.
Removing the hereditary peers will also focus minds on what will be lost in a process that Lord Roberts, a life peer, describes as “cutting a link with our collective past that goes back to the period of Magna Carta”.
With the exception of a recent, snippy article in The Guardian, which decided to focus on the Duke of Norfolk, who has voted 12 times in 21 years (seven relating to hunting), and the Earl of Shrewsbury, who was suspended in 2022 for financial misconduct, even the most hard-hearted of neutral observers would concede that Parliament will lose an extraordinary breadth and depth of expertise when the hereditary peers finally step down.
“We’ve already lost the voice of the military and the countryside,” says Lord Strathclyde, a former minister, chief whip and leader of the House of Lords. “We want to keep what we’ve got: peers such as Lord Remnant, who is a director of a FTSE 100 company, and Lord Trenchard, who knows more about Japan than anyone else in Parliament.”
“It’s been very useful being a professional here,” says Charles Courtenay, a practising barrister in a regional firm and the 19th Earl of Devon. “The Environment Act was one of the first things to come my way in Parliament and I was able to change the law on conservation covenants. The loss of hereditaries will narrow the scope of the House of Lords – to its detriment.”
Similarly, Earl Howe is widely praised for his contributions to the Health and Care Bill 2022, while the Earl of Caithness and the Duke of Westminster campaigned vigorously for cleaner waters in our rivers.
“Why would you not want an expert on media in Parliament like Viscount Colville?” says Earl Attlee, grandson of the post-war Labour PM. “Or an engineer like Lord Ravensdale? The House of Lords is hideously London-centric. Whereas we came into Parliament without knowing anyone in the Westminster bubble.” Ravensdale is currently chief engineer at AtkinsRéalis, a Canadian engineering giant, and has a first-class honours degree in aerospace engineering from the University of Sheffield.
Lord Attlee took his seat in 1992, served on numerous committees, twice held government posts and is currently focusing on the “harassment of heavy haulage industry by West Midlands Police.”
Having first escorted a tank transporter in 1976, qualified as an army HGV driving instructor in 1981, ran NGO aid in Rwanda for much of 1995 and worked as a Battalion technical officer in Bosnia in the winter of 1997/8, the 67-year-old Earl decided to accompany a heavy haulage crew transporting beams for HS2 on May 3 to see for himself what was going on.
Maintaining his cover when stopped by police (“Lord Attlee was careful to say as little as possible as his perceived socio-economic group was not consistent with being a driving assessor”), he has written up a full report on behalf of the road haulage industry that had asked him to intervene.
“There’s no one else in Parliament who could do that,” he says. “And that’s what you’re going to lose.”
Lord Borwick, a Conservative hereditary peer who entered the House of Lords in 2013 after a distinguished business career, agrees.
“There are things that don’t work well in practice, but do in theory,” he says. “This is one of them.
“The average hereditary peer is younger than the average peer. A higher proportion serve as whips, front benchers and committee members. And a much higher proportion contribute to speeches and amendment.”
As chief executive and chairman from 1987-2003 of Manganese Bronze Holdings, which manufactures London black taxis, Lord Borwick was the first person in the world to make a taxi wheelchair accessible. Last year this saw him heavily involved in the Automated Vehicles Bill, chairing a group overseeing trials in Greenwich. He drives his own black taxi to Parliament, where he once overheard a policeman in the car park say to a colleague: “At least one peer has a proper job.”
So will Lord Borwick, aged 69, and others fight the imminent loss of their latest jobs? “I have no right to complain,” he says, “but I think it’s a shame because you have a lot of people willing to put work in for virtually nothing. There are fantastic volunteers in charities across the country, but not so many in government.”
Lord Carrington, a former governor of the Royal Shakespeare Company and chairman at Schroder, is now the King’s representative as the Lord Great Chamberlain, responsible for Westminster Hall, the Royal Gallery, the Robing Room and the King’s visits to Parliament, so he has to be diplomatic. But he “will be telling people what I’ve just told you, which is that, although my role is largely ceremonial, I would be less effective if I have both hands tied behind my back and don’t sit in the House of Lords.”
Others are more bullish. “There is very much a mood for a fight,” says Lord Strathclyde. “Because what we’re talking about is the governance of the country. We want the House of Lords to be better than it was in the past. So this is an important constitutional question. There was a desire to consult in 1999, but we have no idea what the Labour Party have in mind now. There’s nothing proposed in its place: no introduction of democracy, no age or term limit. That’s what we object to most.”
“We’re not the soft targets we were in 1997,” says Lord Attlee. “Any one of us can justify our position in Parliament. But to be honest, I’m fed up with being criticised constantly and unfairly by some parts of the media. So I’m quite happy to retire.”
“I’ve enjoyed it,” says the Earl of Devon, “fully in the knowledge that as soon as we got a Labour government, our days would be numbered.”
00 towards clothes and personal shopping for his wife, Lady Starmer.
