Three years ago, my wife and I decided to make OlKalou our home. We bought a piece of land there and are busy tending it in an effort to make it habitable. Less than a kilometer away from our adopted home, is the small market town of Ol Joro Orok.  In this small town, which is often swept by a biting cold wind, a health center was commissioned and construction work began. In time this health facility, which is being constructed with Constituencies Development Fund (CDF) money allocated to Ol Kalou Constituency,  will benefit neighbors, friends and perhaps the family.  

Constituencies Development Fund

The CDF was established by an Act of Parliament enacted in 2003. It has been hailed as a novel initiative, establishing a new model for rural development. Some of the merits attributed to it include: promotion of equity in the allocation of resources, appropriate application of public resources based on felt needs and cost effectiveness.

Nevertheless, the fund has its critics who argue that there are constitutional and legal flaws to the establishing law, the design of the fund does not promote vertical and horizontal integration with other development initiatives, and that the management of the fund is undemocratic, lacks accountability, and promotes political partisanship. The merits and de-merits of this Fund need to be debated whether at the policy, legal, design or operational levels. After all it is set to expend 7.5% of ordinary government revenue.

A Critical View of the CDF Act: Separation of Powers

The constitution contains no provision explicitly declaring that the powers of the three branches of the government shall be separated. However the scheme of government it establishes does zone out the broad operation of each branch. In specific terms, Section 23 vests executive authority in the President while section 30 vests legislative power in Parliament.

The President and the cabinet are members of the National Assembly and can participate in the affairs of the Assembly like other members. The definition of Parliament is the National Assembly and the President. This constitutional settlement points to a design that permits executive participation in legislation without provision for the corresponding National Assembly participation in execution. Our Constitutional theory therefore establishes government through Parliament. This is of course different from government by Parliament. Parliament does not govern. The overlap in terms of composition of Parliament does not erase the fact that the two branches have autonomous areas of operation.

This autonomy is further safeguarded by the immunities enjoyed by members of these branches of government. Parliamentary speech is privileged while the president cannot be sued for civil or criminal infractions when in office. Judges enjoy tenure and immunity for things done in the course of duty. These privileges and immunities shield those exercising the different powers of government from each other’s coercion in support and protection of autonomy.

The CDF Act extends the role of parliament and its members from legislation to the implementation of legislation. For example, the MP has several roles in the administration of the Act. These include: constituting and convening the Constituency Development Committee (CDC) of which he or she can serve as Chair; transmitting project proposals to the District Projects Committees (DPC); submitting project proposal to Parliament ; and sitting in the DPC where tenders and quotations are approved.

The CDC is the handmaiden of the local Member of Parliament. Its work includes originating project proposals, authorizing the withdrawal of funds from the constituency bank account and overseeing the implementation of projects. It is an MP’s instrument for implementing legislation.

The Act also establishes a Parliamentary Select Committee on the CDF. Some of the functions of this committee include considering project proposals submitted from the constituencies and overseeing the implementation of the CDF Act.

Quite clearly these key functions of the select committee go beyond the constitutional power of legislation. To illustrate, if you pick a member of this committee and plot his/her functions to the Act, they would amount to the following narrative:

1. In 2003 the MP participated in the legislative process that enacted the CDF Act.
2. Upon commencement of the Act in May of the same year, the MP went back to his constituency and established the local CDC, which hastened to originate the project proposals which he submitted to the DPC and thereafter to Parliament.
3. Back in Parliament, our MP sat to scrutinize the list of projects for onward transmittal to the Minister so that funds may be released.
4. He then went back to the constituency, and sat in the DPC to approve tenders and quotations.

It is patently clear that the role of parliament and parliamentarians in the implementation of this Act crosses the line that delineates the functions of parliament and implementation of this Act is in violation of the operational autonomy that is granted to the three respective branches of government, namely; the executive, the legislature and the judiciary. It is in a phrase, in breach of the constitution doctrine of separation of powers.

But why is it important that separation be maintained? Separation prevents concentration of power (seen as the root of tyranny) and provides each branch with weapons to fight off encroachment by the other two branches. As James Madison argued in the Federalist papers (NO. 51) “Ambition must be made to counteract ambition.”  Our system of separated powers is designed to maximize freedom through this separation.

In practical terms, Parliament is supposed to afford the citizen political, as opposed to legal, protection from the zealotry of the other branches of government. The question arises then, if a citizen wanted his/her MP to ask a question in parliament about the workings of the CDF in his or her local constituency, to whom would such a citizen turn? More confounding still, which Minister would answer such a question?

This conundrum leads us to a more difficult constitutional question: given the design of the CDF Act, how is the Parliament to exercise its functions of holding the executive accountable for the expenditure of public funds?

Parliamentary Accountability

The CDF Act provides that the funds received under it shall be audited by the Controller and Auditor Genera (CAG). The reports of the CAG are tabled in parliament through the Minister. Given the executive responsibilities assumed by MPs and Parliament itself in the administration of this Act, how can Parliament exercise its oversight functions with regard to its treatment of CAG reports on CDF Funds? To complete our earlier story, once the audit is performed on the projects implemented and those not implemented, our MP will then retire in parliament to consider the audit report.

No legislation to my mind has in our history created confusion on the role of parliament. It further raises the question of how to make Parliament accountable especially when one considers the subject of the salaries and emoluments of MPs, the expenditure of funds allocated to the Parliamentary Service Commission, and the overall work ethic of MPs.

CDF Act and the Public Officers Ethics Act

The CDF Act designates one person as the Officer administering the fund. It is obvious that this person is no more than a glorified bookkeeper. The CDF together with its Parliamentary cousin the CFC effectively administer the Fund. The DPC, the National Committee, the District Treasury, and the line ministries play other minor parts. All critical decisions on choice of projects, allocation of funds to projects and authorization of expenditure are made by the CDC. These roles effectively place members of the CDC and the National Committee under the purview of the Public Officer Ethics Act. This act, which seeks to promote ethical conduct in public service, in part defines a public officer as Any officer, employee or member, including an unpaid, part time or temporary officer, employee or member of any of the following ..Any corporation, council, board, committee, or other body which has power to act under and for the purpose of any written law relating to government, public health or undertakings of public funds belonging to or granted by the Government or money raised by  rates, taxes, or charges in pursuance of any such law.

It is my view that by declaring one Officer to be administering the Fund, the CDF act does not exhaust the category of persons actually administering it. Indeed section 45(5) of the CDF Act states that Each and every payment out of the constituency account shall strictly be on the basis of a minuted resolution of the Constituency Development committee.

The CDCs do not just originate projects, assign budget to them and oversee their implementation. They also exercise authorization and control measures on payments. This clearly puts them in charge of the funds at the constituency level. The committee members on this reading fall under the definition of public officers under the POEA and are subject to its provisions including the requirements for wealth declaration, adherence to the relevant code of conduct, and its penalties where breaches occur, as they continue to occur.

CDF Act and Costs

Part of the praise heaped upon the CDF is the fact the Act controls the cost of implementing projects. The Act caps the running cost of a constituency office at 3% of the constituency’s annual allocation. Reimbursable to persons managing the fund are also capped at 3% of the total annual allocation for the fund.

This effort to demonstrate prudent management of moneys under the fund conceals two elements relating to costs. First, the Act requires projects to be implemented by relevant government departments. This effectively means that the cost of other public resources diverted to implement CDF projects is yet to be accounted for. Second, the Act also requires that personal emoluments of Government officers managing the Fund shall be provided under the recurrent expenditure of the Government.

These two provisions demonstrate that the CDF allocation is way beyond the stated 2.5% of the ordinary Government revenue. Moreover this diversion of public officials at the district level does not account for the opportunity cost incurred as a result of this diversion. In other words how much is the public foregoing in terms of services so that CDF projects, which by their nature have a showcase element, may be implemented? There are minor editorial errors, which can easily be rectified by the Attorney General.

Conclusion

These legal and constitutional issues need to be addressed by Parliament. Failure to do so will mean that they will end up in courts. It is not the province of the judiciary to arbitrate over such matters, as are highly politicized and steeped in political and policy arenas. However, left with no choice I believe this is the course that those disenchanted with the manner the Act distributes responsibilities will travel.

And so it goes. These coming days my family and I will find our way to that market town with a lyrical name: Ol Joro Orok. And we shall follow the construction of that health centre to the day it opens its doors to the sick and the wounded. And I shall muse to myself: ‘I agree completely with the idea of transferring resources to the rural countryside without bureaucratic fuss. But I object to the manner, I object to the design in which it is done. Respectful, I object to our local MP or any MP for that matter, holding both the yam and the knife.’