MPs on trial

 The recent Supreme Court ruling in Kenya, declaring Constituency Development Fund (CDF) illegal and unconstitutional has ignited debate among stakeholders in the country who want implementation of CDF—largely controlled by legislators in Malawi—to face similar scrutiny.

The Kenyan Supreme Court on Monday this week declared that the constitutional role of members of Parliament (MPs) is legislation, appropriation and oversight, and not managing funds, which is a preserve of the Executive.

The court also ruled that the laws setting up CDF violate the principles of separation of powers and offend division of revenue and public finance law.

Malawi Local Government Association (Malga) executive director

 Hadrod Mkandawire whose organisation took a similar issue to court for a judicial review said in an interview on Wednesday that the Kenyan High Court ruling has vindicated them as that is what they have been seeking from the court.

Said Mkandawire: “The Supreme Court decision in Kenya has extinguished a longstanding precedence of CDF as CDF was invented in Kenya. Malga took a similar issue to court even before we knew that there was a similar litigation in the courts in Kenya.”

He argued that Malawi’s Constitution was modelled on the same framework as that of Kenya, which hinges on the principle of subsidiarity and devolution of powers from central government to local authority, adding that MPs cannot, therefore, be dictating business of local development fund at local level.

Malga sought a judicial review in June this year after Parliament hiked the CDF a month earlier, from K40 million to K100 million and adopted new guidelines for CDF and Water Resources Fund (WRF). Hearing of the judicial review has been scheduled for September 7 2022.

The new CDF and WRF guidelines also saw MPs allocating to themselves 12 key responsibilities, which included convening meetings on a quarterly basis with area development committees (ADCs), submitting requests for funding, launching and handover of projects as well as providing written requests to district commissioners (DC) to release funds for a project, among others.

Councillors, on the other hand, were assigned roles such as working with village development committees to identify needs in a community and monitoring of projects.

Said Mkandawire: “It’s also high time the country clearly defines the parameters of what constitute local development because we have seen a number of centralised funds thinly camouflaged as local development funds being imposed on local government authorities and being quantified as government’s contribution and commitment towards its obligation on decentralisation which is very erroneous.”

In a separate interview, Centre for Social Accountability and Transparency (Csat) executive director Willy Kambwandira agreed with Mkandawire that there has been a lot of reference to and admiration of the Kenyan CDF by the country’s lawmakers and the Executive.

The Csat boss also said that CDF concept is motivated by “greed, corruption and politisation of development”.

Said Kambwandira: “This is what we have been complaining about that CDF is a tale of abuse of office, substandard works, and political cronyism. There is unmerited control by MPs.”

Weighing in, governance expert Makhumbo Munthali also said: “The ideal situation is to abolish this CDF and, instead, channel the funds to District Development Fund (DDF), which is in line with District Development Plans. Let’s increase resources to

strengthening public finance management.”DDF while at the same time

In an earlier interview, Munthali warned that it would be a grave mistake on the part of government to release the K100 million for each constituency as the funds are likely to be abused due to inadequate consultation on the revised guidelines and a short period to conduct any comprehensive awareness of the new guidelines.

Munthali, for instance, wondered why councillors are not among the signatories on the forms such as for project identification and payment request, yet they are key in the decentralisation process.

In an earlier interview, Asiyatu Chiweza, associate professor of administrative studies at the University of Malawi, said transferring management of CDF to Parliament was not a solution to challenges dogging the fund.

Chiweza, who has extensively researched on matters of decentralisation and local government, said several studies have shown that CDF is abused. She said that as a result, there is no accountability for the money and the results of the same.

She said: “By being part of the voted expenditure in the national budget, CDF is supposed to be governed and regulated by the Malawi Public Finance Management Regulatory Framework which includes the Public Finance Management Act of 2003, the Procurement Act, and the Audit Act of 2003.

“Being public funds meant to facilitate local development subject them to local governments as cost  centers to be accountable for how they utilise resources assigned to them within the legal frameworks governing the management of public funds.

“DCs/COEs [district commissioners/chief executive officers] are therefore supposed to control the disbursement of funds and are accountable to Parliament for all local authority votes.”

Chiweza observed that MPs tend to feel a sense of entitlement on CDF because they negotiated for its introduction, a situation she said hampers effective management of the fund by controlling officers.

CDF was introduced in 2006 to facilitate development in constituencies, but it has been prone to abuse with several audit reports highlighting weak accountability and management tools.

From an allocation of K1million in 2006, the fund was raised to K3 million in 2013, K10.5 million in 2016, K19.5 million in 2018 before being increased to K30 million in 2019, K40 million in 2020 and K100 million this year.

Governance experts say CDF is the most abused fund mostly by MPs who disregard its guidelines.

Currently, at least six legislators are under investigation over alleged mismanagement of CDF.

When contacted for a comment, Legal Affairs Committee of Parliament chairperson Peter Dimba while saying Kenya and Malawi use different Constitutions, admitted that “the ruling may have indirect implications domestically”.

On his part Finance minister Sosten Gwengwe said Treasury only funds what is requested by MDAs and that Ministry of Local Government was best placed to comment on the matter.

Minister of Local Government Blessings Chinsinga could not be reached for a comment yesterday