CDF – Constituencies Development Fund Act, 2013

All monies allocated under this Act shall be considered as funds allocated to constituencies pursuant to Article 206(2)(c) of the Constitution to be administered according to section 5.

The Fund established under this section shall be he successor to the Constituencies Development Fund established by section 4 of the Constituencies Development Fund Act, 2003.

There is established a Board to be known as the Constituencies Development Fund Board.

The Cabinet Secretary shall appoint the Chairperson of the Board from amongst the four persons appointed in accordance with paragraph (d) of subsection (2).

The names and curriculum vitae of the persons nominated to be appointed as members of the Board pursuant to paragraph (d) of subsection (2) shall be submitted to Parliament for approval before appointments are made.

Where any issues of policy arise in the course of the performance of its functions under this Act, the Board shall refer the same to the Cabinet Secretary.

The conduct and regulation of the business and affairs of the Board shall be as provided in the Fourth Schedule.

Except as provided in the Fourth Schedule, the Board may regulate its own procedure.

There shall be a Chief Executive Officer of the Board who shall be recruited by the Board on a competitive basis and recommendations made to the Cabinet Secretary for appointment, with the approval of the Parliamentary Committee.

The Chief Executive Officer shall subject to the directions of the Board, be responsible for the day to day management of the affairs and staff of the Board.

The chief executive officer shall serve for a renewable term of five years.

Each and every disbursement from the Fund shall be approved and minuted by the Board.

All disbursements from the Fund shall be for specific projects as submitted by the constituencies in accordance with the procedures outlines in this Act.

All disbursements shall be made through the constituency bank accounts maintained for every constituency in accordance with section 42 of the Act.

Notwithstanding the provisions of subsection (3), payments for a joint project as outlined in section 23(4) or a joint procurement, may be made directly to a supplier or to an account established for the purpose with due approval of the Board.

The record of the amounts received by each constituency and the record of expenditure of amounts so received shall be submitted to the Board within thirty days after the close of the relevant financial year together with a copy of the relevant bank statements and no disbursements for the succeeding financial year shall be made into the accounts until the said records are duly received.

The Board shall set out general conditions and requirements for release of funds, to ensure efficient and effective management of resources.

The Board may impose reasonable requirements, including restrictions, on a particular constituency and such restrictions or requirements shall be reported together with the monthly returns to be submitted to the Cabinet Secretary in accordance with this Act.

The Cabinet Secretary, with the concurrence of the relevant Parliamentary Committee, shall for each financial year allocate funds to each constituency in accordance with section 20.

Once funds are allocated for a particular project, they shall remain allocated for that project and may only be re-allocated for any other purpose during the financial year with the approval of the Board.

If for any reason a particular project is cancelled or discontinued during the financial year, funds allocated for such a project shall be returned to the Fund and credited to the account of the constituency from which the funds were withdrawn.

Unspent funds shall be allocated to any eligible project and such project may be new or ongoing at the end of the financial year.

For the avoidance of doubt, a return as set out in the Third Schedule shall be made for the current financial year and every previous financial year on which some funds remain unspent.

All receipts, savings and accruals to the Fund and the balance of the Fund at the end of each financial year shall be returned to the Fund and applied in accordance with section 10(5) of this Act.

All funds allocated to a constituency shall be cumulative and shall be carried forward from one financial year to the next, including funds returned into the accounts in accordance with section 10(3) or funds which are not utilized for whatever reasons.

A portion of the Fund, equivalent to five per centum (hereinafter referred to as the “Emergency Reserve”) shall remain unallocated and shall be available for emergencies that may occur within the Constituency.

The Constituency Development Fund Committee shall determine the allocation of the emergency reserve in accordance with the Act.

”Emergency” shall be construed to mean an urgent, unforeseen need for expenditure for which it is in the opinion of the committee that it cannot be delayed until the next financial year without harming the public interest of the constituents.

For each project, the Project Management Committee shall set aside a sum of five per centum of the total allocation for the project to cater for the administration expenses of the project.

The sum set aside under subsection (4) shall be properly accounted for and proper books of accounts kept and returns made to the Constituencies Development Fund Committee for that constituency on how the sum has been used.

The list of proposed constituency based projects to be covered under this Act shall be submitted by the chairman of the Constituency Development Fund Committee to the Board after approval by the Constituency Development Fund Committee for that constituency.

The Board shall receive and compile the list of proposed constituency projects submitted to it under this Act and submit it to the Parliamentary Committee for approval.

The list of the proposed constituency projects shall be submitted to the Board before the end of the month of February in each year or such other month as may be determined by the Cabinet Secretary in order to ensure timely inclusion of the projects in the annual Government budget of a particular financial year.

Where the chairman of the Constituency Development Fund Committee fails to submit the list of constituency based projects to the Board within the stipulated time in subsection (1), the list shall be deemed to have been submitted to the Board upon the lapse of the stipulated time.

The list of projects shall be submitted on a Constituency Projects Submission Form set out in the First Schedule to this Act accompanied by minutes of the Constituency Development Fund Committee approving the projects.

All projects proposed for every constituency shall be listed in the Form together with the cost estimates, amounts allocated and amounts disbursed to such projects.

The list of projects received by the Board pursuant to section 13 shall be tabled for review at a meeting of the Board.

The Board shall scrutinize and approve for funding those project proposals that are consistent with the Act.

Where the Board does not approve a proposal submitted to it under this section, it shall refer the matter to the Constituencies Development Fund Committee giving reasons as to why it has declined the proposal.

Further to subsection (1), the budget ceiling for each constituency shall be determined by the Cabinet Secretary in consultation with the Committee and shall be submitted to Parliament for approval.

The Chair of a Committee of the National Assembly shall table in Parliament a schedule showing the ceiling for each constituency, which shall be determined in accordance with subsection (1).

This section shall be deemed to have come into operation beginning with the allocation for the 2013/2014 financial year.

The types of projects submitted for funding under this Act shall comply with the provisions of this Act.

It shall be the responsibility of the Constituency Development Fund Committee to ensure that the list of projects submitted for funding comply with the provisions of the Act and their total cost does not exceed the allowable ceiling for the particular constituency or is not below that ceiling.

If the list of projects submitted for funding is in contravention of subsection (2) the same shall be referred back to the Constituency Development Fund Committee for amendment and re-submission.

Whenever the amount for projects in a constituency is less than the allowable ceiling for reasons of projects being deleted in accordance with subsection (3), or for whatever reason, the shortfall shall be indicated as unallocated amount against that particular constituency on the list to be forwarded to the Cabinet Secretary.

Projects under this Act shall be community based in order to ensure that the prospective benefits are available to a widespread cross-section of the inhabitants of a particular area.

Any funding under this Act shall be for a complete project or a defined phase, of a project and may include the acquisition of land and buildings.

All projects shall be projects as defined under this Act and may include costs related to studies, planning and design or other technical input for the project but shall not include recurrent costs of a facility.

Funds provided under this Act shall not be used for the purpose of supporting political bodies or political activities or for supporting religious bodies or religious activities.

Notwithstanding the provisions of subsection (4), the Constituency Development Fund Committee may identify a religious body or organization as an appropriate specialized agency for purposes of section 12 with regard to emergency support.

A Constituency Development Fund Committee office project shall be considered as a development project for purposes of the Act and may include appropriate furniture and equipment for the office.

Notwithstanding the provisions of subsection (3), up to a maximum of six per centum of the total annual allocation for the constituency may be used for administration, recurrent expenses of vehicles, equipment and machinery and such use shall be listed in the First Schedule as a project.

Projects may include the acquisition of vehicles, machinery and other equipment for the constituency.

Sports activities shall be considered as development projects for purposes of this Act but shall exclude cash awards provided that the allocation to such activities does not exceed two per centum of the total allocation of the constituency in that financial year.

Monitoring and evaluation of ongoing projects and capacity building of various operatives may be considered as a development project provided that not more than three per centum shall be allocated for this purpose.

Environmental activities may be considered as development projects for purposes of this Act provided that the allocation to such activities does not exceed two per centum of the total allocation of the constituency in that financial year.

Each of the projects shall be listed on the First Schedule including the emergency item under section 11 and, where applicable, the activities under subsections (6), (7), (8), (9), (10) and (11) of this section.

The number of projects to be included in the Constituency Projects Submission Form specified in the First Schedule shall be a minimum of five and a maximum of twenty-five for every constituency in each financial year.

Constituencies with unspent funds at the end of the financial year shall submit new proposals to the Board for approval in accordance with section 10(5) of this Act.

Project activities of a similar nature in a particular constituency may be combined and considered as one project for purposes of subsection (1) provided that the sub-projects are listed in the Second Schedule.

Constituencies may pool resources for joint projects provided that the decision for such joint projects shall first be approved by the Constituency Development Fund Committee of each of the participating constituencies and shall be reflected on the projects listed for each of the participating constituencies.

Where constituencies have joint projects, the County Projects Committee shall co-ordinate such projects.

There shall be a Constituency Development Fund Committee for every constituency.

The Cabinet Secretary shall cause the names of persons appointed as members of the Constituencies Development Fund Committee, pursuant to subsection (2) to be published in the Kenya Gazette.

The first meeting of the Constituency Development Fund Committee shall be convened within the first sixty days of a new Parliament or a by-election, by the national government official at the constituency or in his or her absence, by an officer of the Board seconded to the constituency, on such day as may be designated by the Cabinet Secretary.

The Chairperson of the Constituency Development Fund Committee in consultation with the Member of Parliament for the Constituency, the sub- county administrator for the Constituency, and the ward administrator for every ward shall, within the first year of a new parliament and at least once every two years thereafter, convene open forum public meetings at in every ward in the constituency to deliberate on development matters in the ward and the constituency.

Each ward shall come up with a list of priority projects to be submitted to the Constituency Development Fund Committee.

The quorum of the Constituency Development Committees shall be one half of the total membership.

The term of office of the members of the Constituency Development Fund Committee shall be three years irrespective of a parliamentary term but shall be renewable and shall come to an end upon the appointment of a new Constituency Development Fund Committee in a manner provided in this Act.

The Fund account manager seconded by the Board to the constituency shall be the custodian of all records and equipment of the constituency during the term of parliament and during transitions occasioned by general elections or a by-election.

Whenever a vacancy occurs in the Constituency Development Fund Committee by reason of resignation, incapacitation or demise of a member then the vacancy shall be filled from the same category of persons where the vacancy has occurred.

The Constituency Development Fund Committee shall meet at least six times in a year and not more than twenty-four times in every financial year including sub-committee meetings.

The Constituency Development Fund Committee shall, at its discretion, determine the quantum of installments to various projects in the constituency, taking into account the disbursement received and the requirement of different projects.

A decision to remove a member under subsection (14) shall be made through a resolution of at least five members of the Committee and the member sought to be removed shall be given a fair hearing before the resolution is made.

A vacancy arising as a result of the removal of a member under subsection (14) shall be filled in the manner set out in subsection (11) and minutes of the meeting shall indicate the fact of the removal or appointment of a member.

The committee may employ staff, and such staff shall have knowledge in information and communications technology, construction and basic accounting.

Staff employed under subsection (17) shall help in project monitoring evaluation, co-ordination and proper keeping of records and such staff shall be remunerated from the funds allocated for administration and recurrent expenses.

The Constituency Development Fund Committee may make appropriate consultations with the relevant Government departments is done to ensure that cost estimates for the projects are as realistic as possible.

The Constituency Development Fund Committee shall rank the projects in order of priority and whenever, in the opinion of the Board, the total cost of the projects listed exceed the ceiling for a particular constituency, then the order in which they are listed shall be taken as the order of priority for purposes of allocation of funds, provided that on-going projects shall take precedence over all other projects.

A project or any part thereof which involve personal awards to any person in cash or in kind, shall be excluded from the list of projects submitted in accordance with section 13 of the Act.

Notwithstanding the provisions of subsection (1), an education bursary scheme, mocks and continuous assessment tests shall be considered as a development project for purposes of the Act provided that such a project shall not be allocated more than twenty-five per centum (25%) of the total funds allocated for the constituency in any financial year.

The National Assembly shall, in accordance with its Standing Orders, establish a Select Committee consisting of a chairperson and not more than eighteen other members of the National Assembly.

In determining the membership of the National Assembly Select Committee, the National Assembly shall ensure proportionate representation of the Parliamentary Political Parties.

The term of office of the members of the National Assembly Select Committee shall be three years renewable or upon the appointment of a new committee in a manner provided for in this Act, whichever comes earlier.

The procedures and rules for the operations of the National Assembly Committee shall be governed by the Standing Orders of the National Assembly.

The Committee may make reports other than the statutory report stated in subsection 5(b) to appraise the National Assembly on various matters relating to the Fund and to seek various approvals as required by the Act.

Projects under this Act shall be implemented by the project management committee in each case, with the assistance of the relevant department of Government and all payments through cheques or otherwise shall be processed and effected in accordance with government regulations for the time being in force.

Where a project in a constituency involves the purchase of equipment, such equipment shall remain for the exclusive use of that constituency.

The Constituency Development Fund Committee and the Board shall be responsible for monitoring the implementation of projects and may designate a sub- committee, a ward committee or a project committee, the functions of monitoring an on-going projects and shall submit a report on the ongoing projects to the ward administrator and sub-county administrator, and the County Projects Committee.

All fixed and movable assets, including equipment bought under this Act for use by the Constituency Development Fund Committee shall be the property of the Board to be insured in the name of the Board.

No asset or equipment acquired under this section shall be disposed of without the prior approval of the Board.

• Any proceeds that may accrue from the disposal of any asset acquired pursuant to subsection (5) shall be credited to the account of the constituency from whose funds the asset was acquired and such funds shall be reflected and declared as part of the following years constituency fund for that constituency.

All works and services relating to projects under this Act shall be procured in accordance with the provisions of the Public Procurement and Disposals Act 2005 (Cap. 412A).

Projects initiated by a community shall be eligible for support under this Act provided that such projects shall be submitted with the other projects in conformity with the requirements of this Act.

Pursuant to subsection (1), a community shall, maintain an elected committee to represent the interests of that community during and after the implementation of the project and such a committee shall conform with the requirements of this Act.

There shall be established, for every county a committee to be known as County Projects Committee whose main function shall be to coordinate the implementation of projects financed through the Fund.

The County Projects Committee may, in the discharge of its functions under this Act, make official or impromptu visits to projects at such times, as it may deem appropriate.

All county departmental heads in a county under whose docket the various projects fall may attend County Projects Committee meetings as ex officio members, at the invitation of the County Projects Committee.

The County Projects Committee shall elect a chairperson from amongst the members of the Committee who shall serve for a term of three years or subject to regulations under this Act.

The quorum for any meeting of the County Projects Committee shall be one half of the members and for the purposes of this section immediate past members shall remain members of the County Projects Committee until a new County Projects Committee is convened pursuant to the provisions of subsection (7).

Meetings of the County Projects Committee shall be held at the county headquarters at least two (2) times in a year and not more than four times in every financial year including sub-committee meetings.

All County Projects Committees existing prior to a parliamentary election shall continue in office until a new County Projects Committee is constituted as in accordance with subsection (1).

The new County Projects Committees shall be constituted within sixty days of a new Parliament being inaugurated.

The Board shall allocate funds to County Projects Committee for administration purposes.

The County Projects Committee shall, at the beginning of every financial year, prepare and circulate to the various Constituency Development Fund Committees in that county a list of other government allocations for various projects in the County.

Despite subsection (1), the existence of another allocation by government to a project in the constituency shall not be used as a reason to deny either approval or funding of any project consistent with this Act.

The existence of another allocation by Government to a different project in the county shall not be used as a reason to deny either approval or funding of any project consistent with this Act.

The Board shall appoint such officers and other staff as are necessary for the proper management of the Fund and discharge of its functions under this Act, upon such terms and conditions of service as it may determine.

The principal management structure of the Board shall be established or varied by the Board with the approval of the Cabinet Secretary.

For the purpose of disbursement of funds under this Act there shall be opened and maintained a constituency account for every constituency at any commercial bank, approved by the Cabinet Secretary into which all funds shall be kept and such an account shall be known by the name of the constituency for which it is opened and each constituency shall maintain only one account.

The bank account opened pursuant to subsection (1), shall be separate from that of the County Treasury.

At least three signatories shall be required for every cheque or instrument for actual payment or withdrawal of funds from a constituency account and the signing instructions shall be such that there shall be at least one signature of an officer seconded by the Board and at least two signatures of two members of the Constituency Development Fund Committee.

The Fund account manager shall hold the authority to incur expenditure of the funds at the constituency account.

Funds from the constituency account shall only be withdrawn as disbursements for a particular project in accordance with the provisions of section 9 of the Act.

Every payment or instruction for payment out of the constituency fund account shall be strictly on the basis of a minuted resolution of the Constituency Development Fund Committee.

All receipts, savings and accruals to the constituency account and the balances thereof at the end of each financial year shall be returned to the Board Fund Account.

All unutilized funds shall remain in the constituency account and no investment elsewhere shall be permitted, provided that funds meant for a project that is cancelled or discontinued shall be returned to the Fund Account in accordance with section 10 of this Act.

All unutilized funds of the Project Management Committee shall be returned to the constituency account.

Any accruing revenues, interest and liabilities from any constituency account shall be declared to the Board together with the annual returns.

A bank account of the Fund shall be opened and maintained at the Central Bank of Kenya.

The signatories to the account of the Fund maintained in accordance with subsection (1), shall be the Chief Executive Officer and three other persons appointed by the Board from amongst its members.

The signing instructions shall be such that the signature of the Chief Executive Officer shall be mandatory on all payment cheques and/or instruments intended for actual release of money from the fund, plus any two of the other three signatories.

An accurate record of all disbursements made for projects to every constituency shall be kept and updated every month by the Board.

The disbursement of funds to the constituency fund account shall be effected at the beginning of the first quarter of each financial year with an initial amount equivalent to twenty-five per centum of the annual allocation for the constituency and thereafter the constituency fund account shall be replenished in three equal installments at the beginning of the second, third and fourth quarters of the financial year.

The Chairperson of the Board shall submit an annual report on the activities, operations and expenditure under the Act.

At the end of every financial year the Board shall submit separate accounts of the constituencies and the Board to the Auditor-General.

The expenditure for running the Board and related purposes shall be set aside at the beginning of the financial year and not more than five per centum of the total allocation to the Fund in the financial year may be used for this purpose, the annual budget of which shall be approved by the Cabinet Secretary..

The personal emoluments of Government officers working or involved in the management of the Fund shall be provided for under the recurrent expenditure of Government but any other emoluments or payments to such officers from the Fund shall be determined by the Cabinet Secretary.

Sitting allowances for the members of the County Projects Committee shall be paid out of the funds set aside for the Board under subsection (1) and the sitting allowances for the Constituency Development Fund Committee shall be paid out from funds set aside in section 22(7).

The accounts of each constituency and secretariat of the Board shall be audited and reported upon in accordance with the Public Audit Act, 2003, (Cap. 412B) and the Public Finance Management Act, 2012, (Cap. 412C).

The Cabinet Secretary may make regulations for the smooth running of the Fund and such regulations shall be approved by the National Assembly before implementation

The Cabinet Secretary may amend any of the Schedules through a notice in the Gazette, provided that such amendments shall first be approved by the National Assembly before implementation.

The provisions of this Act shall be complimentary to any other development efforts by the national government, the county governments or any other agency and nothing in this Act shall be taken or interpreted to mean that an area may be excluded from any other development programmes.

For the avoidance of doubt, normal Government development allocations shall continue alongside the projects funded under this Act.

All complaints and disputes by persons arising due to the administration of this Act shall be forwarded to the Board in the first instance.

Complaints of a criminal nature shall be forwarded by the Board to the relevant government agencies with prosecutorial powers.

Disputes of a civil nature shall be referred to the Board in the first instance and where necessary an arbitration panel whose costs shall be borne by the parties to the dispute, shall be appointed by consensus of the parties to consider and determine the matter before the same is referred to court..

Notwithstanding subsection (3), parties shall be at liberty to jointly appoint an arbitrator of their choice in the event of a dispute but where parties fail to jointly agree on an arbitrator, the Cabinet Secretary may appoint an arbitrator whose costs shall be jointly borne by the parties.

Subject to this Act, no person in the management of the Fund shall be held personally liable for any lawful action taken in his official capacity or for any disputes against the Fund.

The Constituencies Development Fund Act, 2003 is repealed.

In this section—

On the commencement day, all the funds, assets and other property both movable and immovable, which immediately before such date were vested in the former Board shall by virtue of this subsection, vest in the Board.

On the commencement day, all rights, powers and liabilities, whether arising under any written law or otherwise which immediately before such day were vested in, imposed on or enforceable against the former Board shall be deemed to be vested, imposed or enforceable against the Board.

Any reference in any written law or in any document or instrument to the former Board shall, on and after the commencement day, be construed to be a reference to the Board.

The annual estimates of the former Board for the financial year in which the commencement day occurs shall be deemed to be the annual estimates of the Board for the remainder of that financial year.

The administrative directions made by the Board or by the Cabinet Secretary which are in force immediately before the commencement day shall, on and after such day, have force as if they were directions made by the Board or the Cabinet Secretary under this Act.

The members of the former Board and the Chief Executive Officer shall continue in office as members of the Board and the Chief Executive Officer respectively until the expiry of their existing terms.