Exit Would Uphold Separation of Powers in Public Finance Management

By Lina Munini

Matungulu MP Stephen Mutinda Mule’s latest remarks defending the National Government Constituency Development Fund (NG-CDF) reflect the entrenched resistance among legislators to uphold the constitutional principle of separation of powers.

Speaking at St. Charles Lwanga Kinyui Catholic Church during a Way of the Cross event, Mule vowed to “protect the CDF” and resist any move that would see its control shift away from MPs—even after the High Court ruled in 2024 that the current structure of NG-CDF is unconstitutional.

At the heart of this legal and political debate is a fundamental constitutional question: Should Members of Parliament—whose core mandate is lawmaking and oversight—directly manage public funds and engage in project implementation?

The doctrine of separation of powers, which underpins Kenya’s 2010 Constitution, provides a clear demarcation of the roles of the three arms of government:

The Legislature is tasked with making laws and overseeing the Executive.

The executive is responsible for implementing laws and managing public programs.

The judiciary interprets laws and adjudicates disputes.

The continued control of NG-CDF by MPs violates this foundational principle by assigning legislators an executive function—implementing development projects.

This conflict undermines accountability, erodes checks and balances, and leads to political patronage and misallocation of resources.

Unfortunately, many MPs, including Mr. Mule can’t get it because they are terminally conflicted.
By managing the CDF, MPs become both players and referees—allocating funds, selecting contractors, and then purporting to oversee the very projects they administer.

Such a model not only distorts public finance management but also risks turning legislative offices into mini-executives, breeding inefficiency, and corruption.

Mr. Mule’s assertion that governors cannot be trusted with the fund due to corruption allegations is, ironically, a case for strengthening institutions—not undermining constitutional order. Citing corruption in the devolved units cannot justify MPs clinging to a role that does not belong to them. Instead, it highlights the need for robust oversight mechanisms—precisely the role Parliament is supposed to play.
Moreover, Mule’s argument that MPs have delivered more tangible results than governors in sectors like Early Childhood Development Education (ECDE) betrays a fundamental misunderstanding of institutional roles. Infrastructure delivery is an executive function, and if MPs have performed better than governors, the issue is not who should build, but why oversight and accountability mechanisms are failing in the first place.

For over two decades, the CDF has existed in a legal grey zone—repeatedly challenged in court and repeatedly rebranded to sidestep constitutional scrutiny. The time has come to decisively settle this issue. The truth remains: MPs must exit CDF soonest. It is a constitutional imperative.

MPs must exit the CDF. The fund should be fully transferred to constitutionally mandated executive entities, with transparent processes for citizen participation and parliamentary oversight. Parliament’s role is to legislate and hold the Executive to account—not to manage construction projects.

The High Court ruling of 2024 reaffirmed this constitutional imperative. Now, it is up to all stakeholders—including legislators—to respect the rule of law and reinforce the democratic architecture envisioned in the Constitution. Anything less amounts to institutional impunity.

Let MPs serve where they are constitutionally required: in debating laws, defending the public interest, and keeping the Executive in check—not in digging boreholes and constructing classrooms.

NG-CDF reflects the entrenched resistance among legislators to uphold the constitutional principle of separation of powers. Speaking at St. Charles Lwanga Kinyui Catholic Church during a Way of the Cross event, Mule vowed to “protect the CDF” and resist any move that would see its control shift away from MPs—even after the High Court ruled in 2024 that the current structure of NG-CDF is unconstitutional.

At the heart of this legal and political debate is a fundamental constitutional question: should Members of Parliament—whose core mandate is lawmaking and oversight—directly manage public funds and engage in project implementation?

The doctrine of separation of powers, which underpins Kenya’s 2010 Constitution, provides a clear demarcation of the roles of the three arms of government:

• The Legislature is tasked with making laws and overseeing the Executive.
• The Executive is responsible for implementing laws and managing public programs.
• The Judiciary interprets laws and adjudicates disputes.

The continued control of NG-CDF by MPs violates this foundational principle by assigning legislators an executive function—implementing development projects. This conflict undermines accountability, erodes checks and balances, and leads to political patronage and misallocation of resources.

By managing the CDF, MPs become both players and referees—allocating funds, selecting contractors, and then purporting to oversee the very projects they administer. Such a model not only distorts public finance management but also risks turning legislative offices into mini-executives, breeding inefficiency and corruption.

Mr. Mule’s assertion that governors cannot be trusted with the fund due to corruption allegations is, ironically, a case for strengthening institutions—not undermining constitutional order. Citing corruption in the devolved units cannot justify MPs clinging to a role that does not belong to them. Instead, it highlights the need for robust oversight mechanisms—precisely the role Parliament is supposed to play.

Moreover, Mule’s argument that MPs have delivered more tangible results than governors in sectors like Early Childhood Development Education (ECDE) betrays a fundamental misunderstanding of institutional roles. Infrastructure delivery is an executive function, and if MPs have performed better than governors, the issue is not who should build, but why oversight and accountability mechanisms are failing in the first place.

For over two decades, the CDF has existed in a legal grey zone—repeatedly challenged in court and repeatedly rebranded to sidestep constitutional scrutiny. The time has come to decisively settle this issue.

MPs must exit the CDF. The fund should be fully transferred to constitutionally mandated executive entities, with transparent processes for citizen participation and parliamentary oversight. Parliament’s role is to legislate and to hold the Executive to account—not to manage construction projects.

The High Court ruling of 2024 reaffirmed this constitutional imperative. Now, it is up to all stakeholders—including legislators—to respect the rule of law and reinforce the democratic architecture envisioned in the Constitution. Anything less amounts to institutional impunity.

Let MPs serve where they are constitutionally required: in debating laws, defending the public interest, and keeping the Executive in check—not in digging boreholes and constructing classrooms.

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