The National Government Constituencies Development Fund (Amendment) Bill, 2023

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THENATIONALGOVERNMENTCONSTITUENCIES

DEVELOPMENTFUNDAMENDMENT)BILL,2023

A Bill for

• AN ACTof Parliament to amend the National Government Constituencies Development Fund Act

ENACTED by theParliamentofKenya,asfollows-

• 1.This Act may be cited as the National Government ConstituenciesDevelopment Fund (Amendment)Act,
• 2023.
• 2.Section3 oftheNationalGovernment
• Constituencies Development Fund Act (hereinafter referred
• (a)in paragraph (h) by deleting the word "specified" and substituting therefor the word"exclusive";and
• (b)in paragraph (k) by inserting the word "exclusive" immediately after the words"matters falling within the".
• 3.Section 4 of the principal Act is amended by
• deleting subsection (3).
• 4.Section 15of theprincipal Act isamended-
• (a)in subsection (1)(e) by inserting the wordsin accordance with the recommendations of the PublicService Commission and"i immediately after the word"Cabinet Secretary";
• (b)in subsection (2)by inserting the words"the Public Service Commission"immediately after the
• words"Cabinet Secretary";
• (c)by deleting sub-section(4)
• 5.The principal Act is amended by repealing section
• 19 and substituting therefor thefollowing sections-

Shorttitle.

Amendment of

section3ofNo. 30of2015

Amendment of section4of No. 30of2015 Amendment of section 15of No.30of2015

Repeal and replacement of section 19of No.30of2015

Vacancy

Filling of vacancy

• 19.The office of the chairperson or member of the Board falls vacant if the
• holder-
• (a) dies;
• (b)resigns in writing,by a notice addressed to the Cabinet Secretary;
• (c)is convictedofa felony and
• sentenced to imprisonment;
• (d)is absent from three consecutive meetings of the Board without good cause;
• (e) isremovedfrom office in accordance with the procedure set out in any written law.
• 19A.(l)Whenever a vacancy arises in the Board,the Public Service Commission shall,within fourteen days-
• (a) invite applications from persons who qualify for nomination and appointment by advertisement in at least two daily newspapers with nationwide circulation;
• (b) consider the applications received todetermine their compliance with the requirements set out in this Act;
• (c)shortlist the applicants;
• (d) conduct interviews for the
• shortlisted persons;
• (e)recommended three qualified persons for each vacancy to the Cabinet Secretary for nomination for appointment.
• (2)The Cabinet Secretary shall within fourteen days of the receipt of the names of the persons recommended for nomination under sub-section l(e),nominate one person for each vacancy and forward the names to the National Assemblyfor approval.

• (3)The National Assembly shall, within twenty-one daysof the day itnext sits after receipt of the name of an applicant under subsection (2),vet and consider the applicant, and may approve or reject applicants for any or all vacancies in the Board.
• (4)Where the NationalAssembly
• Approves of an applicant,theSpeakerof the National Assembly shall forward the name of the approved applicant to the Cabinet Secretary for appointment.
• (5)The Cabinet Secretary shall,within seven days of receiptof the name of the approved applicant from theNational Assembly,by notice in the Gazette appoint the applicant to theBoard.
• (6) Where theNationalAssembly rejects any nomination,the Speaker shall within three days communicate its decision to the Cabinet Secretary and request the Cabinet Secretary to
• submitfresh nominations.
• (7)Where a nominee is rejected by the National Assembly under subsection (6),the Cabinet Secretary shall within seven days, submit to the National Assembly a fresh nomination from amongst the persons shortlisted and forwarded by the Public Service Commission undersubsection
• (1)(e).
• (8) If the National Assembly rejects submitted by the Cabinet Secretary for approval under subsection (1), the provisions of subsections (1) and (2) shall
• any or all of the subsequent nominees apply.
• (9)In short listing,nominating or appointing persons to fill a vacancy in the Commission, the Public Service Commission,the National Assembly and the

Cabinet Secretary shall ensure that notmore than two-thirds of the members are of the same gender.

• 6.The principal Act is amended by repealing section 24and substituting therefor the following new section-
• Projects to be in 24.A project under this Act shall only respect of national goveramentfunetionsbe inrespect ofworks and servicesfalling within the exclusive functions ofthe national government as provided in the
• Constitution.
• 7.Section 25 of the principal Act is amended
• (a) by deleting subsection (8);and
• (b)by deleting subsection (10).
• 8.Section 34 of the principal Act is amended in subsection (l) by inserting the following new paragraph immediately after paragraph(b)-
• ()an amount that ensures that the total allocation
• to a constituency is not less than the amount allocated to the constituency in the preceding financial year;
• 9.Section 43 of the principal Act is amended-
• (a) in subsection(2)-
• (i)by deleting the word "two"appearing in paragraph (b) and substituting therefor the word"three";
• (ii) by deleting the word "two"appearing in paragraph (c) and substituting therefor the word"three";
• (ii)by deleting paragraph (e).
• (b)bydeleting sub-section (6) and substituting therefor thefollowingnewsub-section-
• (6) The first meeting of the Constituency Committee shall be convened by the officer of the Board seconded to the constituency within one hundred and twenty days from the dateof theholding of a general election as contemplated in Article 10i(1)ofthe Constitution.

Repeal and replacement of section 24 of No. 30of2015.

Amendment of section 25 of No. 30of2015.

Amendment of section 34ofNo. 30of2015

Amendment of

section 43 of No. 30of2015.

Act

National Government Co-ordination Act, No.1of2013.

SCHEDULE

CONSEQUENTIALAMENDMENTS

Provision Amendment

s.14(1)

Insert the following new sub-section immediately after sub-section(1)-

(1A) Despite sub-section (1),all the constituencies established under Article 89 of the Constitution are hereby recognized and established as national government service delivery units.

Insert the word "constituencies" s.14(4) immediately after the words"For purposes of this section,the".

MEMORANDUMOFOBJECTSANDREASONS

The principal object of thisBill is to amend theNational Government Constituencies DevelopmentFund Act,No.30 of2015 toprovide thatthe projects that are tobe undertaken under the Fund shall be projects that fall within the exclusive mandate of the national government. This is to align the Act with the Constitution on the distinct role and functions of the national andcounty governments and to avoid conflict between the two levelsofgovernment.

Clause 1 of theBill providesforthe short title of theBill.

Clause 2of theBill providesfor the amendmentof section 3 of the Act to provide that the objects of the Fund shall be to facilitate the National Assembly to oversightand supplement infrastructure development over projects falling under the exclusive jurisdiction of the national government.

Clause 3 oftheBill providesfor the deletion of section 4 subsection (3) to prevent situation where the collected government revenue is lower than the preceding year.

Clause 4oftheBillprovides for theamendmentof section 15 of the Act to empower the PublicServiceCommissiontomake recommendations to the Cabinet Secretary on thepersons to be appointed as members of the National Government Constituencies Development Fund Board established under section 14 of the Act.

Clause 5 of the Bill provides for the repeal of section 19 and replacing it with provisions that incorporate the Public Service Commission in the recruitment process of the Board members as contemplated underArticle234 of the Constitution.

Clause 6 of the Bill provides for the repeal and replacement of section 24of theAct toprovide that a project under this Actshall onlybe in respect ofworks and services falling within the exclusive functions of the national government under the Constitution and other enabling legislation.

Clause 7 of the Bill provides for deletion of section 25 subsections (8)and (i0)of the Acttoprovide for the funding ofprojectsfallingunder theexclusivejurisdiction ofthenational government.

Clause8 of theBill seeks to amendsection34(1)of theActin order to ensure that the total amount ofmoney allocated to a constituency isnot less than the amount allocated to the constituency in the preceding financialyear.

Clause 9 of the Bill provides for the amendment of section 43 subsection (2) to delete the provision enabling the constituency office to nominate two members of the National GovernmentConstituencies Development Fund Committee and replace the same with two persons nominated in accordance with the Regulations in force.

Clause 10 of theBillprovidesfor therepeal ofsection 52 of theAct.

Clause 11 of theBill providesfor therepeal ofsection53 of theAct.

Clause 12 of the Bill providesforrepeal ofsection53A of the Act, consequential to therepealofsection52of theAct.

Clause 13 of theBillprovidesfor deletion of section 54 subsection (2)of the Act to prevent duplication of subsection (1).

Clause 14 of the Bill provides for the Schedule which sets out the consequential amendments to the National Government Co-ordination Act,No.1of2013 to ensure that constituencies arerecognized as national government service delivery units.

Statementon the delegation oflegislative powers and limitation of fundamental rights and freedoms

The Bill does not delegate legislative powers to the Cabinet Secretary.It also doesnotlimitfundamental rightsand freedoms.

Statement that the Bill concerns county governments

The Bill does not concern county governments in terms of Article 109(5)of the Constitution as it does not contain provisions thataffect the functions and powers of the county governments as set out in the Fourth

Schedule to the Constitution.

Statement that the Bill is a money Bill within the meaning of

Article 1l4 of the Constitution

The enactment of this Bill shall not occasion additional expenditure ofpublicfunds.

Dated the 19th April,2023.

KIMANIICHUNGWAH,

Leaderof theMajorityParty.

Section 3 of theAct which it isproposed to amend-

Objects of the Act

The objects of this Act are to-

• (a)provide for the establishment and administration of the Fund;
• (b)recognise the constituency as a platform for identification, performance and implementation of national government
• functions;
• ()facilitatethe performanceand implementationof national government functions in all parts of the Republic pursuant to Article 6(3)of the Constitution;
• (d)provide for the participation of the people in the determination and implementationofidentifiednational government 10(2)(a)of the Constitution:
• (e) promote the national values of human dignity,social justice, inclusiveness,equality,human rights,equity,non-discrimination andprotection of themarginalized pursuant to Article 10 (2)(b)
• of the Constitution;
• (provide for the sustainable development of all parts of the Republicpursuant to Article 10(2) (d)of the Constitution;
• (g)provide a legislative andpolicy frameworkpursuant toArticle21 (2) of the Constitution for the progressive realization of the economic and social rights guaranteed under Article 43 of the
• Constitution:
• (h)provide mechanisms for the National Assembly to exercise oversightover theperformance ofspecifiednational government functions at the constituency level as provided for under Article 95 of the Constitution;
• (i)deleted by Act No.39 of2016,s.2:
• authorize withdrawal ofmoney from the Consolidated Fund as provided underArticle206(2) (c)of the Constitution;
• (k)provide for mechanisms for supplementinginfrastructure developmentat the constituency level in matters fallingwithin the functions of thenational government at that level in accordance with the Constitution;

• (1)provide a framework for citizens led development to assist the national government in planning and prioritizing the use of its resources;
• (m)create a harmonious relationship between citizens and the national government and its officersin local development;
• (n)provide a platform for citizensparticipationin service delivery;
• (o) build local accountability and transparency in the use of resources;and
• (p)provide for a public finance system that promotes an equitable development of the country by making special provisions for marginalized groups and areas pursuant to Article 201 (b)(ii)of the Constitution.

Section 4of theActwhichit isproposed to amend-

Establishment of the Fund

• (1) There is established a fund to be known as the National Government ConstituenciesDevelopmentFund which shall-
• (a)be a national government fund consistingofmonies ofan amount ofnot less than 2.5%(two and halfpercentum)of all the national government's share ofrevenue as divided by the annual Division of Revenue Act enacted pursuant to Article 218 of the Constitution
• (b) comprise of any monies accruing to or received by the Board from any other source;and
• (c)be administered by the Board.
• (2) All monies allocated under this Act shall be considered as funds allocated to constituencies pursuant toArticle 206 (2)(c)of the Constitution to be administered in accordance with the provisions of this Act.
• (3) The monies appropriated to the Fund in any financial year under subsection (l)(a) shall not be less than the amount appropriated to the Fund in the preceding financialyear unless as otherwise allowed by this Act.

Section 15of theActwhich it isproposed toAmend-

Composition of theBoard

• (1) The Fund shall be administered by a Board of Directors which shall consist of-

2. (a) the principal secretary in the Ministry for the time being responsible formatters relating to national economic policy and planning or a designated alternate,not being below the level of Director of Planning; 3. (b) the principal secretary in the Ministry for the time being responsible for matters relating to finance or a designated alternatenotbeingbelow the level of DeputyDirector ofBudget; 4. (c) the Attorney-General or a designated alternate not being below the level of Senior State Counsel; 5. relating to education or a designated alternatenotbeing below the levelof Director; 6. (e) seven other persons, three of whom shall be of the opposite gender and at least one shall be a person with disability,qualified in matters relating to finance,accounting, engineering. economics,community development,public affairs,project management,education,security or law appointed by the Cabinet Secretary with the approval of theNational Assembly;and 7. (f) the chief executive officer who shall be an ex-officio member without a right tovote. 8. (2)In nominating or approving the appointment of a person asa member of the Board under sub-section (1),the Cabinet Secretary and the National Assembly shall take into account gender equity and theregional diversities of the people ofKenya.

• (3) The Cabinet Secretary shall appoint the chairperson of the Board from amongst the seven persons appointed in accordance with paragraph (e)of subsection (1).

10. (4) The names and curriculum vitae of the persons nominated to be appointed as members of the Board pursuant to paragraph (e)of subsection (l) shall,before appointments are made,be submitted to the NationalAssembly for approval.

Section19 of theActwhich it isproposed torepeal-

Removal ofa member of theBoard

• (1) The office of a member of the Board for a member appointed under paragraphs (e) and (f) of section 15(1) shall become vacant if the member-

2. (a)resigns by giving written notice to the Cabinet Secretary;or

• (b) is removed from office on any one or more of the following grounds-
• seriousviolationof the Constitution or any other law;
• (i) gross misconduct,whetherinperformance of the members or office holder's functions or otherwise;
• physical or mental incapacity to perform the functions of office;
• (iv) incompetence;
• (V) bankruptey;
• (vi) engaging in active politics;or
• (vii) absence from three consecutive meetings of the Board without the permission of the Chairperson.
• (2)A person desiring the removal ofa member of the Board under subsection(l)maypresent a petition to theNational Assembly Committee setting out the alleged facts constituting that ground.
• (3) A member sought to be removed under subsection (l) shall be given a fair hearing before a decision is made by theNational Assembly Committee.
• (4)The National Assembly Committee shall,upon receivinga petition under subsection (2),consider the petition and may recommend that themember be suspended pending the outcome of the complaint
• (5)The National Assembly Committee shall consider thepetition and if it is satisfied that it discloses a ground under subsection (l),it shall make a determination that the member be removed from office and the member shall stand removed from office upon the making of that determination.
• (6)A vacancy arising as a result of the removal of a member under subsection (5) shall be filled in the manner set out in section 15 within thirty days of the occurrence of the vacancy.

Section24of theActwhichitisproposed toamend-

Projects to be in respect ofnational government functions

AProject under thisActshall-

• (a) only be in respect of works and services falling within the functions of thenational government under the Constitution;and

• (b)be community based in order to ensure that the benefits are available to a widespread cross-section of the inhabitants ofa particular area.

Section 25of theActwhich it isproposed to anend-

Funding ofprojects

• (1)Any funding under this Act shall be for a complete project or a defined phase ofa project and may include the acquisition of land and buildings.
• (2)All projects shall be projects as defined under this Act and may include costs related to studies,planning and design or other technical inputfor theproject but shall not include recurrent costs of a facility.
• (3)Fundsprovided under this Act shall notbe used for the purpose of supportingpolitical bodiesorpolitical activities or for supportingreligious bodies or religiousactivities.
• (4)Notwithstandingtheprovisionsof subsection(3),the Constituency Committee may identify a religious body or organization as an appropriate specialized agency for purposes of section8withregard to emergency support.
• (5) Constituency Committee office project shall be considered as a developmentprojectforpurposesof theAct andmay include appropriate furniture and equipmentfor the office
• (6)Notwithstanding the provisions of subsection (2),up toa maximum of six per centum of the total annual allocation for the constituency may be used for administrationrecurrent expenses of vehicles,equipment and machinery and such use shall be listed in the Third Schedule asa project.
• (7)Projects may include the acquisition of vehicles,machinery and other equipmentfor the constituency.
• (8) 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 doesnot exceed two per centum of the total allocation of the constituency in thatfinancialyear.
• (9) Monitoring and evaluation of ongoing projects and capacity building ofvariousoperativesmaybe considered asa developmentproject provided that not more than three per centum shall be allocated for this purpose.
• (10) Environmental activities may be considered as development projects for purposes of this Actprovided that the allocation to such

activities does notexceed twoper centum ofthe total allocation of the constituency in that financial year.

• (11) Each of the projects shall be listed in the Third Schedule including the emergency item under section 8 and,where applicable,the activities under subsections (5),(6),(7),(8),(9) and (10) of this section.

Section34of theActwhichitisproposed toamend-

34.Basis for budget ceiling

• (1) The budget ceiling for each constituency shall be-

2. (a) three quarters of the amount specified in section 4 (1) divided equally among all constituencies; 3. (b) an amount equal to a quarter of the amount specified in section 4 (1) divided among all constituencies taking into account the number ofwards in each constituency;and 4. (c)subject to theprovisions of section 8(1) and section 23(1). 5. (2)The Chairperson of theNational Assembly Committee shall table in the National Assembly a schedule showing the ceiling for each constituency,which shall be determined in accordance with subsection (1). 6. (3)Despite subsection (1),the National Government may,through the National Government Constituency Development Fund Committees established under section 43,where necessary,facilitate other projects or programmes falling within the purview of the National Governmentwith funds other than the funds specified in section 4 (1).

Section 43of theActwhichit isproposed to amend-

National Government ConstituencyDevelopment Fund Committee

• (1)There is established a National Government Constituency DevelopmentFund Committee forevery constituency.
• (2)Each Constituency Committee shall comprise of-
• (a) the national government official responsible for co-ordination of national governmentfunctions;
• (b) two men each nominated in accordance with subsection (3),one ofwhom shall be ayouthat thedateofappointment;
• (c)two women nominated in accordance with subsection (3),one of whom shall beayouthat thedateofappointment;

• (d) one person with disability nominated by a registered group representing persons with disabilities in the constituency in accordance with subsection (3);
• (e) two persons nominated by the constituency office established under Regulations made pursuant to the Parliamentary Service Act;
• (f) theofficer of theBoard seconded to the Constituency Committee by theBoardwho shall be an exofficiomemberwithout avote.
• (g)one member co-opted by the Board in accordance with Regulations made by theBoard.
• (3)The seven persons referred to in subsection (2)(b),(c),(d) and (e) shall be selected in such manner and shall have such qualifications as the Board may,by Regulations,prescribe.

(4) The names of the persons selected under subsection (3) shall be submitted by theBoard to theNationalAssemblyforapproval before appointment and gazettement by theBoard.

(5) The Regulations made under subsection (3) shall be submitted to theNational Assemblyfor approval beforepublication by theBoard.

(6) The first meeting of the Constituency Committee shall be convened within one hundred and twenty days of the commencement ofa new term ofParliament or the date of theholding of 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.

• (7) The quorum of the Constituency Committee shall be one half of the total membership.

2. (8)The term ofofficeof themembersof the Constituency Committee shall be two years and shall be renewable but shall expire upon the appointment of a new Constituency Committee in the manner providedfor in theAct,or asmaybe approved by theBoard.

(9) 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.

(10) Whenever a vacancy occurs in the Constituency Committee by reason of resignation,incapacitation or demise of a member the vacancy shall be filled from the same category ofpersonswhere thevacancy has occurredwithin a period of onehundred and twenty days.

• (11) The Constituency Committee shall meet at least six times in a year but the committee shall not hold more than twenty-four meetings in the same financial year,including sub-committee meetings.
• (12) deleted by Act No.24of 2022,s.16(c).
• (13)A member of the Constituency Committee may be removed from office on any one ormore of the followinggrounds-
• (a) lack of integrity;
• (b)gross misconduct;
• (c)embezzlement ofpublicfunds;
• (d)bringing the committee into disrepute through unbecoming personal public conduct;
• (e)promoting unethical practices;
• (f) causing disharmony within the committee;
• (g)physical or mental infirmity.
• (14)A decision to remove a member under subsection (l3)shall be made through a resolution of at least fivemembers of the Committeeand themember sought to beremoved shall begiven a fair hearingbefore the resolution is made.
• (15) A vacancy arising as a result of the removal ofa member under subsection(13) shall be filled in the manner set out in subsection (10)and minutes of the meeting shall indicate the fact of the removal or appointment of a member.

Section52of theActwhichitisproposed to amend-

Allocationsunder the Act are supplementary

The existence of another allocation by thenational government to a project in the constituency or a neighboring Constituency shall not be used with this Act.

Section53 of the Actwhich it isproposed to repeal-

Constituency Oversight Committee

• (1) There is established a Constituency Oversight Committee for projects undertaken under this Act.
• (2) The Constituency Oversight Committeeshall be comprised of the constituency member of the National Assembly and not more than four

other members,appointed by theMember of National Assembly for the constituency in consultation with other stakeholders.

• (3) The constituency Member of National Assembly shall,in consultation with the Constituency Oversight Committee at least twice in every financial year,and upon giving notice of at least fourteen days, convenepublicforums for purposes of-
• (a) mobilizing and sensitizing the respective target groups on any matterrelated to the Fund;and
• (b) soliciting views,opinions and proposals from the public in regard to theFund and presenting theviewsand opinions to the National Assembly.
• (4) The public may in the public forums above-
• (a) make recommendations to the Constituency Committee for the better implementation ofprojects undertaken under the Act;
• (b) witness the commissioning of projects and issuance of cheques and other disbursements by the Constituency Committee;and
• (c)express their views on the implementation of the Fund.
• (5)A member of the Constituency Oversight Committee may attend meetings of the Constituency Committee or its sub-committees,to ensure fair distribution of the fund.

Section53Aof theActwhich it isproposed to repeal-

Facilitation of Constituency Oversight Committee

In discharging its obligations,the Constituency Oversight Committee shall be facilitated by funds set aside by the constituency,provided that such allocation does not exceed one per centum of the total allocation of the constituency in that financial year.

Section54 of theActwhich it isproposed toamend-

Provisions in the Act are complimentary

• (1)The provisions of this Act shall be complimentary to any other development efforts by the national government or any other agency and nothing in this Act shall be taken or interpreted to mean that an area may be excludedfrom any other development programmes.
• (2) For the avoidance of doubt,normal Government development allocations shall continue alongside the projectsfunded under this Act.