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"id": 1571935,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/1571935/?format=api",
"text_counter": 156,
"type": "speech",
"speaker_name": "Rarieda, ODM",
"speaker_title": "Hon. (Dr) Otiende Amollo",
"speaker": null,
"content": "because, under Article 255, it is not required, and the cost of a referendum would be unnecessary in this case. This Bill seeks to constitutionalise the issue of NG-CDF. Almost everyone has supported NG-CDF, although some have challenged it on constitutional grounds. We seek to remedy that by putting it in the Constitution so that it is beyond the constitutional question. Once we do that under Article 23, it will be beyond challenge. No one opposes the idea of NG-CDF itself but rather, the role of Members of Parliament and certain functions included in the NG-CDF Act. It is important to understand that, under the Preamble to our Constitution, the people of Kenya have the sovereign and inalienable right to determine the form of governance they desire. That form is captured in the Constitution but may be amended from time to time. We believe it is time to entrench the idea of NG-CDF in the Constitution. A Constitution is not a Bible as summarised in the Ten Commandments; it is a working document that can be adjusted and changed as the people may desire. Constitutional edits are therefore, movable and can be added to or removed. This amendment is essentially minimalist and is entrenched under Article 204, which in our opinion, is the best place to have it. It is important to clarify that this amendment applies only to matters within the exclusive jurisdiction and functions of the National Government, and not to any functions of county governments. It is also limited to monies appropriated from the national government's share of revenue as defined in the Division of Revenue Act. Those who are saying that we abolish the NG- CDF and transfer it to counties should understand that, even if NG-CDF was abolished, the funds would not go to counties and would not do those county functions. This Bill addresses three commonly raised complaints. First, it does not affect county allocations. Second, it gives no role to Members of Parliament in its implementation. Third, it does not interfere with the doctrine of separation of powers. On the matter of separation of powers, the Constitution mentions the principle only three times, and only in the context of devolution. While it is a necessary principle, it is not absolute. It can be adjusted according to national needs, and our constitutional design has already made significant adjustments. Traditionally, the Executive holds both the purse and the sword, but in Kenya, the purse has been moved to Parliament, which now determines Budget allocations. This is an adjustment of the doctrine. Additionally, although the Judiciary is traditionally mandated to interpret the law and the Constitution, we have established a Judiciary Fund to protect its financial independence. Moreover, Kenya has created constitutional commissions and independent offices that do not fall under the three traditional Arms of Government. Therefore, those who invoke the principle of separation of powers to challenge NG-CDF must explain how these other institutional arrangements conform to that same principle. All those who usually come and sing Separation of Powers in respect of NG-CDF should tell us how do these three things accord to Separation of Powers. Separation of Powers is a doctrine that was considered hundreds of years ago and cannot tie our hands in this day and age if it is necessary. However, of great importance is that the idea of NG-CDF as provided for in this Bill does not offend Separation of Powers. Hon. Deputy Speaker, it is also important to understand devolution versus decentralisation. There are those who think that because we have devolution, any decentralised funds are unconstitutional because they affect devolution. That is not so. A keen reading of Articles 6 and 10 of the Constitution require that even those functions given to the national Government need to be decentralised. That is why we have decentralised funds for roads, Women and Youth Enterprise Fund, and Uwezo Fund and no one has ever challenged any them. There can be no challenge to The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor."
}