CDF declared uncostitutional

[RV Pundit]

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It seem it undermines devolution. It should be replaced by a fund to be managed by counties...possibly at the ward level.Mps will not like this and will even attempt to ammend the constitution.

[Ka-Bella]

Indeed. I actually didn't know CDF was still going on until rather late. My problem is not so much undermining devolution as the separation of powers: CDF is more executive than legislative, seems to me. An MP is a legislator, not a manager of funds for development at a small unit level of govt. Though I see your point as the House is part of the National govt, not the county. So it's both the national govt and the legislative branch inserting themselves into another government.  If we need a mini-management at that level underneath or as part of the county-government, we can do that properly. Devolving the devolved govt a bit further. How does such a ruling sit with the one upholding the continuation of the former provincial structure which truly harms the spirit of devolution, as its the national executive trying to take over/insert itself into the affairs of the county?

[Kim Jong-Un's Pajama Pants]

They will ammend the law according to the speaker.  They are also appealing. 

Given that the issue concerns them rather than Wanjiku, they will come out guns blazing in bipartisan fashion.  I don't put it past them to ignore the courts.

[Omollo]

After the 2010 Katiba came in to being, it became even more clear that CDF was a malignant cancer in the system. So MPs set about curing the cells with chemotherapy. They dressed CDF as a "Donation" from the National Government to the constituency!

Well, the High Court has determined that the so called "cure" in effect poisoned more cells in the body. For starters, while the law recognizes that the National Government may donate funds to the people mashinani, it also establishes a clear channel through which the cash can be shipped - that is County Governments!

Secondly the Court determined that by making the "donation" to the Constituencies, GoK was effectively robbing the County governments.

So in brief the CDF act is dead as dodo - unless they take corrective measures. Now that is the challenge.

For starters, who will make the changes? We have Muturi speaking in Molo (obviously before he read the judgment) assigning the house he controls the power to amend the CDF act to conform with the ruling. He is in for a shock:

1. The High Court clearly stated that any laws affecting the County Governments have to pass through the senate. While Parliament is not barred from contributing, it is up to the senate. And that is going to resurrect an old issue that Muturi would rather see remain buried - Supremacy wars! ( we shall come back to that shortly)
2. Whatever amendment must ensure that MPs lose their powerful and controlling power over the fund and that it is seen to be independent of the MPs and in the control of the Executive (in this case County government).

The last time Muturi allowed a bill to go to the senate, he allowed MPs to strip it of whatever contribution the senators had added so that there was no evidence the bill had passed through the Senate. Now he has another opportunity to recognize the Senate. Will he do it? Will MPs allow changes made to the CDF bill by senators to stand?

There are clear options:

a. They could let them stand
b. The could repeat the stripping exercise

MPs lose either way. If they allow the senate to write the law, at best the senators will write themselves in the CDF and at worst will lock out MPs altogether!

If the opt to strip it as they did before, the matter ends up in court, time runs and by the end of the 12th month, the law dies while awaiting judgement in some court.

The MPs have a way out: they may use the slow moving judiciary to keep CDF alive.

Indeed. I actually didn't know CDF was still going on until rather late. My problem is not so much undermining devolution as the separation of powers: CDF is more executive than legislative, seems to me. An MP is a legislator, not a manager of funds for development at a small unit level of govt. Though I see your point as the House is part of the National govt, not the county. So it's both the national govt and the legislative branch inserting themselves into another government.  If we need a mini-management at that level underneath or as part of the county-government, we can do that properly. Devolving the devolved govt a bit further. How does such a ruling sit with the one upholding the continuation of the former provincial structure which truly harms the spirit of devolution, as its the national executive trying to take over/insert itself into the affairs of the county?

[Ka-Bella]

@Omollo, interesting.

MPs lose either way. If they allow the senate to write the law, at best the senators will write themselves in the CDF and at worst will lock out MPs altogether!

If the opt to strip it as they did before, the matter ends up in court, time runs and by the end of the 12th month, the law dies while awaiting judgement in some court.

The MPs have a way out: they may use the slow moving judiciary to keep CDF alive.

Given the "constitution" of this house, I suspect the 2nd option will happen.

[Omollo]

Duale has added his voice to that of Muturi in chorusing the intention to amend the act. None of them is addressing the key issue of the SENATE input! So far senators have opted to keep quiet perhaps quietly savouring the sumptuous opportunity the High Court has landed on their usually empty plates.

If indeed senators will willingly hand billions to MPs who have in the recent past never wasted an opportunity to belittle the senate and even propose to abolish it, then Kenya would have indeed changed.

@Omollo, interesting.

MPs lose either way. If they allow the senate to write the law, at best the senators will write themselves in the CDF and at worst will lock out MPs altogether!

If the opt to strip it as they did before, the matter ends up in court, time runs and by the end of the 12th month, the law dies while awaiting judgement in some court.

The MPs have a way out: they may use the slow moving judiciary to keep CDF alive.

Given the "constitution" of this house, I suspect the 2nd option will happen.

[RV Pundit]

Yes the tricky part for Mps will be the Senate. The senate would love nothing but to be in charge of their own fund.

[Omollo]

The Senate has won more than it ever hoped for. The two Speakers's power to single handedly decide which bill involves the Counties has effectively been quashed. They will no longer exercise that power discretionarily. Their word is no longer final and is open to challenge.

There are some subtle but serious implications. Some not so serious such as the fact that the term MP is obsolete in it old meaning having been replaced by Member of the National Assembly (MNA) or National Assembly Member(NAM). The media hasn't taken note. In reality the MNAs and Senators are both Members of Parliament (MPs)

Even if they amend the act, MPs (MNAs and Senators) are unlikely to wield any more power over the fund. If GoK goes along with keeping CDF it will be the loser as the National Revenue would FIRST have to be shared between the National Government and the County Governments. Only after that can the National government give grants to support "CDF". But again the High Court has ruled that such infusions of cash pass through the County Government!

[Omollo]

Raila is going to irritate me no end. He should accept that the High Court made a wise decision and advise his MNAs to accept it too. He was on the right side yesterday when he supported the high Court ruling. Today by some logic he deicides to go against that.

http://www.nation.co.ke/news/politics/Cord-to-save-CDF-Raila-Odinga/-/1064/2631834/-/x0181hz/-/index.html

[RV Pundit]

Omollo,

For once our judiciary seem to be the working; at least when Ngungi Mumbi (albino) lady is on the bench; you can bet a good decision will be arrived at.

[Omollo]

Mumbi should be the next Chief Justice. I hear politicians and businessmen hand huge bribes to court clerks to hide their files so their cases do not come before her. Njuguna Ndung'u of the Central Bank poured money until his case went before Majanja - who is now the GoK Gatekeeper. The matter came up for investigation and as usual Mutunga failed. I just wish we had ten Mumbi Ngugis. The Judiciary would change. And she is hard working too - for real! She closes her cases in record time. No delays. Advocates trying to stretch cases know the risk!

Omollo,

For once our judiciary seem to be the working; at least when Ngungi Mumbi (albino) lady is on the bench; you can bet a good decision will be arrived at.

[RV Pundit]

Thanks for the usual insight into ongoing in judiciary. Yes Mumbi Ngugi deserves to be promoted quickly to Court of Appeal..and eventually to CJ...when Mutunga goes home with his dismal record.

Mumbi should be the next Chief Justice. I hear politicians and businessmen hand huge bribes to court clerks to hide their files so their cases do not come before her. Njuguna Ndung'u of the Central Bank poured money until his case went before Majanja - who is now the GoK Gatekeeper. The matter came up for investigation and as usual Mutunga failed. I just wish we had ten Mumbi Ngugis. The Judiciary would change. And she is hard working too - for real! She closes her cases in record time. No delays. Advocates trying to stretch cases know the risk!

Omollo,

For once our judiciary seem to be the working; at least when Ngungi Mumbi (albino) lady is on the bench; you can bet a good decision will be arrived at.

[Omollo]

Pundit

I stand to be corrected but I was under the impression that one does not need to be a Court of Appeal Judge to become CJ. High Court judges with the requisite experience are qualified. After all Njoki Ndungu, Smokin Wanjala, Nancy Baraza, became Supreme Court Judges with no previous bench experience! She has yet to distinguish herself in any way and is largely seen as playing the role of messenger to the court from GoK. Mumbi would have done a much better job.

[Ka-Bella]

Pundit

I stand to be corrected but I was under the impression that one does not need to be a Court of Appeal Judge to become CJ. High Court judges with the requisite experience are qualified. After all Njoki Ndungu, Smokin Wanjala, Nancy Baraza, became Supreme Court Judges with no previous bench experience! She has yet to distinguish herself in any way and is largely seen as playing the role of messenger to the court from GoK. Mumbi would have done a much better job.

Hear, hear on Mumbi for CJ! I think we were seriously taken for a ride by kina Ahmednasir and Company with their elitist nonsense.

He was humiliating people who've been on the bench long enough for anyone to draw a profile from their jurisprudence you could've used to evaluate them, but nooo! Having post-graduate degrees was the main determinant for a good judge, eh? I don't see how writing and defending a thesis before other Academics is supposed to make one much more an expert than years of reading and producing and shaping jurisprudence. So the genius team arrogantly gave us Phds who have never written a single judgment in their lives. We had nothing to go by! And yet we placed them in the SUPREME court RIGHT AWAY!!!??! ....What were we thinking? We were so short sighted right from the start. They should've at least started as High Court Judges, all these greenies like Njoki and everyone else (except I think Ojwang). Even if we had to go outside Kenya to find good occupants for the Supreme Court, we should have done so and arranged for that, even giving them limited short-term appointments while we mature our new Judiciary, if need be. Rather than experimenting on the most important court right from the start. I think even the old judges Ahmednassir humiliated on TV, those we used to complain about, with their experience, were much better than this weird team we got.

[Kadudu]

Justice Mumbi does not think like a "Mumbi"
She would be the best choice to replace Willy Mutunga but she will never make it to the helm of the justice department. She is too independent for Kenyan politicians.

Mumbi should be the next Chief Justice.

[Omollo]

My point at the time was that since the likes of Bosire, Aganyanya etc were to be seen as conservative, then a balance could have been struck where a few liberals in the name of Baraza, Mutunga etc. The court would then see some semblance of order. A judge who has been on the bench for 40 years is not easy to intimidate and we may have seen some dissent during the petition Raila filed. Instead we have a court that is paper thin and quite aware of it.

Most of the time is spent on fighting the High Court and Court of Appeal (CoA). The Court of Appeal Judges do not think much of the Supreme Court and have made it clear in their rulings. In an act of stupidity beyond measure, we see the Supreme Court Judges resorting to regular Omollo Matusi while reversing each and every judgement of the CoA. It has reached a shameful point. So everyone now knows that the Supreme Court ist trying too hard to prove itself.

It has illegally extended it's powers and jurisdiction beyond what was envisaged in the Constitution. Election Petitions should never have reached its precincts but now every Politician knows if the CoA rules against you, just rush to the Supreme Court. Their anger and the determination to legitimize past unfair and silly jurisprudence preponderates over rational action.

I hope we shall get it right in future.

On Ahmednasir: He was too drunk with power. Degrees mean zero when conferred to an idiot. One of my former lecturers Austin Bukenya had a Bachelor's Degree from Makerere. I heard he has since earned at least a Masters. He was by far more competent than any of the PhDs in the faculty.

Hear, hear on Mumbi for CJ! I think we were seriously taken for a ride by kina Ahmednasir and Company with their elitist nonsense.

He was humiliating people who've been on the bench long enough for anyone to draw a profile from their jurisprudence you could've used to evaluate them, but nooo! Having post-graduate degrees was the main determinant for a good judge, eh? I don't see how writing and defending a thesis before other Academics is supposed to make one much more an expert than years of reading and producing and shaping jurisprudence. So the genius team arrogantly gave us Phds who have never written a single judgment in their lives. We had nothing to go by! And yet we placed them in the SUPREME court RIGHT AWAY!!!??! ....What were we thinking? We were so short sighted right from the start. They should've at least started as High Court Judges, all these greenies like Njoki and everyone else (except I think Ojwang). Even if we had to go outside Kenya to find good occupants for the Supreme Court, we should have done so and arranged for that, even giving them limited short-term appointments while we mature our new Judiciary, if need be. Rather than experimenting on the most important court right from the start. I think even the old judges Ahmednassir humiliated on TV, those we used to complain about, with their experience, were much better than this weird team we got.

[Omollo]

I have noted that. She is completely devoted to the administration of law and does not inflect for tribe, etc. I think Kibaki and company got a rude awakening when they discovered just who they had appointed!

Justice Mumbi does not think like a "Mumbi"
She would be the best choice to replace Willy Mutunga but she will never make it to the helm of the justice department. She is too independent for Kenyan politicians.

Mumbi should be the next Chief Justice.

[RV Pundit]

I won't blame the appointment of new blood..the judiciary as it was..was very tainted. But yes in Supreme court..it only Tunoi who is career judge...Prof Ojwang spent most of his time teaching law and i think came to judiciary as part of Kiraitu aborted judicial reforms.

If only we can get a few honest and diligent judges like Mumbi Ngugi

[gout]

heard Nyachae CIC indicate that away from legalese in the judgement ..it simply means CDF is kaput and the one year is to allow proper transition... That the ruling states that the two levels of govt have distinct roles according to 4th schedule ....... that most projects undertaken by cdf are allocated to couny govts.... that thus given this touches on devolution any changes in the constitution on this has to go to a referendum... it is not just parliament business ... no wonder raila attempt to milk the opportunity to revive his dead okoa kenya thingie

interesting how MPs are trying to hide behind the CDF board ...ohh we do not touch this money ...ours is oversight ....

more interesting to see how treasury which is struggling with serious deficits would take the news that they can 'save' over 13 billion

this could be best move to ensure MPs have their eyes on National govt which is 50% running amok and stop petty competition with MCAS, senators and governors

[Kadudu]

It happened a couple of times during Kibaki's reign especially after the only time he won the election fairly in 2002. I remember their selection of Maina Kiai to be chair of KHRC and some mebers like Muthoni Wanyeki. Biggest dissapointment to Mt Kenya Mafia was of course John Githongo.

I have noted that. She is completely devoted to the administration of law and does not inflect for tribe, etc. I think Kibaki and company got a rude awakening when they discovered just who they had appointed!