The Supreme Court led by Chief Justice David Maraga is set for a landmark ruling on the controversial National Government Constituency Development Fund (CDF) constitutionality of the Act which the Appeal Court Court in November last year upheld.

Two lobby groups — The Institute for Social Accountability (TISA) and Centre for Enhancing Democracy and Good Governance — argued in a petition to the Supreme Court argued that the appellate court erred by failing to find that the CDF Act and the later amendment to the Act by Parliament is unconstitutional.

Principle of separation of powers

They added that the decision offended the principles of public finance, division of revenue and the division of functions of the national and county governments.

Earlier, Appellate Court judges Erastus Githinji, Hannah Okwengu and GBM Kariuki found that CDF Act offends the principle of separation of powers, they said it was improbable that CDF would interfere with county governments’ planning or autonomy.

The two organisations, through lawyer Waikwa Wanyoike, want the Supreme Court to issue a declaration that numerous provisions of the CDF Act, 2013 are unconstitutional, which cumulatively renders the Act untenable and, therefore, unconstitutional.

National fund

In their decision, the three judges said that CDF is not an additional allocation to county governments but a national fund established by national legislation which straddles all constituencies and which complements the development efforts by national and county governments.

This will be first case for the Supreme Court judges to rule on, after the stormy decision to uphold the re-election of President Uhuru Kenyatta in October last year.

The Court dismissed two petitions which were purged at the court by two activists to strip off Uhuru Kenyatta the victory that was announced by the Independent Electoral and Boundaries Commission (IEBC). The court, however, is yet to give a detailed judgement on why it upheld the historically protracted election