[This is a guest post by Kenson Mutethia.]
From an objective reading of the Court of Appeal’s NGCDF Act Judgment it is fair to state that as the Supreme Court prepares to confront the second round of the NGCDF challenge, it will not only be deciding on doctrine but also confronting competing constitutional narratives. This is because the real problem with NGCDF is not merely MPs’ appetite for control over resources but also voter expectations. Specifically, many MPs genuinely believe that the only contributions voters recognise are visible, localised projects such as graded roads, classrooms built, bursaries issued and water points commissioned. Ironically, many MPs themselves seem to internalise the idea that representation, legislation and oversight are inconsequential. We recently heard the Speaker urge MPs to remember at least the laws they pass. If to some of us this sounded like just another sound bar or a light moment, it should be even sadder, because that moment captured something deeper about how lightly our very own lawmakers treat the legislative function.
While under the Constitution, (i) Parliament’s role is to legislate, represent, and oversee, and (ii) project implementation falls within the Executive’s purview (at both the National and County levels) to avoid blurring the separation of powers, the “lived political reality” is that in the Kenyan political environment, legislative work, oversight and representation feel abstract and politically unrewarding. This “lived political reality” would explain why, in the NGCDF dispute, the National Assembly argues that the NGCDF establishes a lawful framework for the decentralisation of national government services. To it, as accepted by the Court of Appeal now, the constituency serves as an administrative convenience through which national functions are delivered more closely to the people. The adversaries respond that what is described as decentralisation is, in principle and in effect, the creation of a parallel, constitutionally unknown third tier of government. Yet a constituency is not a recognised unit of service delivery under the Constitution; rather, it is an electoral unit. To them, converting it into a funding and implementation unit risks distorting the architecture of devolution and the overall constitutional integrity framework.
However, in its judgment, the Court of Appeal appeared to accommodate the “lived political reality”. To achieve this, the Court of Appeal: (i) suggested that the basic structure doctrine, which might cast doubt on the transformation of constituencies into service-delivery units, does not apply in Kenya, (ii) downplayed concerns about duplication of funding, confusion in project implementation and uncertainty about which level of government is responsible for particular projects. To obscure the deference given to the “lived reality”, however, the court resorted to legal sophistry and judicial parlance (legal sophistry is a ‘clever’ approach that entails making superficially sound but disingenuous and deeply flawed decisions). Specifically, the Court offered three key responses to the issues raised against NGCDF. First, claims of confusion during project implementation are unsupported by reality, as the NGCDF has been operational since 2016. Second, any disputes can be resolved through established intergovernmental mechanisms. Third, and most importantly for the Court, the NGCDF is “clearly” limited to national government functions (for a critique on this blog, see here).
The most fascinating bit in the judgment, however, is how the Court of Appeal found fault primarily with section 43 (9) of the NGCDF, which tethers the independence and tenure of the Fund Account Manager to the political tenure of the Member of the National Assembly (holding that the linkage clearly entrenches political influence). Yet (rather, curiously), the Court did not see comparable difficulty with parliamentary involvement in the Fund’s governance, particularly in approving the appointments of those who administer it. Is it not too fantastic for the Court to assume that parliamentary control was sought only through section 43 (9)? Did the Court deliberately overlook that it was equally plausible that approval powers over key administrators function as a subtler but equally potent mechanism of control? If Parliament participates in approving those who run the Fund, while also retaining political visibility and influence at the constituency level, the separation between legislation and execution becomes porous. The concern quickly metamorphoses from tenure linkage to structural proximity. And we know, perhaps too well, if it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck.
As the Supreme Court revisits the issue, it may need to ask more difficult questions than the Court of Appeal did. Questions beyond the mere rhetoric of whether disputes have arisen since 2016. It is a trite constitutional principle, as established by the Supreme Court in the first round CDF Judgment, that the longevity of a practice does not confer constitutional legitimacy. Second, the fact that confusion has been (or could be) manageable does not mean the design is sound. Third and most importantly, limiting the Fund to “national functions” does not, by itself, prevent overlap in practice.
Notably, the Supreme Court has already endorsed in Law Society of Kenya v Attorney General & another at para 40 the purpose and effect test (also known as the “object and effect test”) as a standard method for resolving disputes concerning the constitutionality of statutes and the infringement of human rights and fundamental freedoms. With this test, a court asks the appropriate questions, which usually result in a conclusion that a law with a facially benign object or purpose is unconstitutional if its effects (intended or unintended) are unconstitutional. The purpose-and-effect test is especially useful in democracies such as Kenya, where constitutional challenges are more practical than theoretical. In fact, this appreciation of the underlying context of high-stakes constitutional challenges (an approach I loosely refer to here as “constitutional realism”) might have informed the landmark BBI decision to preclude the President and other State Officers from serving as promoters/initiators of the “popular initiative” amendment process under Article 257 of the Constitution. To illustrate, on paper, there is nothing sinister about the President moving constitutional amendments through popular initiative; after all, it is often said that “…the President is the only national voice in affairs. Let him once win the admiration and confidence of the country, and no other single force can withstand him; no combination of forces will easily overpower him. His position captures the country’s imagination. He is the representative of no constituency, but of the whole people. When he speaks in his true character, he speaks for no special interest. If he rightly interprets the national thought and boldly insists upon it, he is irresistible; and the country never feels the zest for action so much as when its President is of such insight and calibre.”
The BBI majority decision, however, looked beyond the constitutional silence in Articles 255 and 257 and, informed by the lived reality and history of the Kenyan people under the shackles of presidential imperialism, chose to bar the President from the popular initiative. Much as one would disagree with the conclusion of what the constitutional silence should have yielded in that case, one can easily see the constitutional realism that was at play and the weight with which it informed the majority decision. In other words, it is possible that without the historical context of Articles 255 to 257, Justice Njoki Ndungu’s SCJ dissenting opinion would have carried the day.
Just like BBI (specifically the popular initiative question vis-à-vis imperialism), the NGCDF debate sits at the intersection of constitutional fidelity and political demand. BBI had the unenviable task of deciding the limits of the most popularly elected leader in pushing for constitutional amendments through the popular initiative. The Court had an option to yield to political demand, but it chose to prioritise constitutional fidelity (in the manner it perceived best, whether we agree with it or not). That was important because it established a precedent and a judicial imprimatur that courts can draw institutional boundaries.
Now comes the NGCDF, and again the Supreme Court will have to strike a balance between constitutional fidelity and political demand regarding the first delegation of the people’s sovereignty, i.e., Parliament. On the one hand, it may be very difficult for the Supreme Court to wish away the political culture that equates representation with direct project implementation. For starters, striking down NGCDF without addressing (or at least acknowledging) the accountability and visibility gap it fills risks cosmetic redesigns and continued political resistance. On the other hand, upholding it in the same manner as the Court of Appeal’s NGCDF Act Judgment does, entrenches structural constitutional tensions. The Supreme Court is effectively embroiled in the classic “damned if you do, damned if you don’t” dilemma.
That is why, when the Supreme Court determines this dispute, it must be alive to the reality that what is at stake is: if the constituency is allowed to evolve into a quasi-service-delivery unit under the banner of decentralisation, we must be honest about what that means for devolution, the separation of powers and the identity of Parliament itself. One can only hope that the case at the Supreme Court will directly confront these competing interests between constitutional fidelity and political demand. But what makes the Supreme Court’s task truly unenviable is the fact that the dispute involving the constitutionality of NGCDF is separate from the question of whether NGCDF delivers projects. What the Supreme Court must decide is whether we, the People, are willing to reshape the constitutional order to satisfy the politics of visibility. How it ultimately decides this question is a matter of wait and see.
