Katiba Institute challenges MPs' push to entrench CDF, other funds in Constitution

Katiba Institute and its civil society partners have gone to court to block a fresh attempt by Parliament to anchor three public funds in the Constitution through a proposed amendment law.

In a petition filed before the High Court, the organisation is challenging the Constitution of Kenya (Amendment) Bill, 2025, which it says is an unconstitutional move by the National Assembly to alter the country’s governance and budgetary structure.

The Bill, introduced by Rarieda lawmaker Otiende Amollo and his Ainabkoi counterpart Samuel Chepkonga, seeks to introduce the National Government Constituencies Development Fund (NG-CDF), the Senate Oversight Fund (SOF), and the National Government Affirmative Action Fund (NGAAF) into the Constitution.

It was tabled for first reading in the National Assembly on March 12, 2025.

The House has now scheduled a public participation exercise across all 290 constituencies starting next Monday.

Katiba Institute has termed the move to amend the Constitution as unlawful and unnecessary, arguing that the funds the Bill seeks to anchor are inconsistent with the current constitutional order.

"The Bill and any associated processes, including the scheduled public participation, are unnecessary and violate the constitutional requirement for prudence and responsibility in public spending," the organisation said in a statement on Friday.

According to Katiba Institute, the proposed amendments would introduce a parallel structure for service delivery that goes against the role assigned to the national executive under the Constitution.

It said the existing law and budgetary process already provide the necessary framework to fund and implement the functions being targeted by the Bill.

It further said, "The Bill contains provisions that require approval through a referendum. Therefore, Parliament should first be compelled to enact a referendum law, which it has failed to do for the past 14 years, before embarking on any constitutional amendment process."

Katiba Institute maintained that the Constitution does not need to be changed to allow the NG-CDF or other similar funds to function.

It pointed to existing court decisions, including a ruling by the Supreme Court, which affirmed that these funds can operate under the current legal framework.

"The Bill and any expenditure related to it are, therefore, unnecessary and represent a waste of scarce public resources that could otherwise be directed towards essential services," the statement read.

The petition also argues that amending the Constitution to create such funds would undermine its integrity and the intentions of the drafters, as well as the will of the people.

It warned that the changes would conflict with established constitutional principles and set a dangerous precedent.

Katiba Institute said the national executive is already mandated to carry out the functions being targeted by the Bill, and that these functions are funded through the regular budget process.

It cautioned against setting up alternative structures that mimic county-level systems within national government operations.

"This is akin to amending the Constitution to create separate funds and structures for counties to implement their functions," it stated.

The organisation also raised alarm over a proposal to create a fund under the national executive to finance Senate oversight.

It said this would amount to duplication, interfere with the independence of Parliament, and breach the principle of separation of powers.

"Proceeding with these amendments would, therefore, undermine both the letter and spirit of the Constitution," it added.

As part of its petition, Katiba Institute is asking the court to suspend the public participation exercise planned for May 5 to 7, 2025.

It also wants the Controller of Budget barred from approving any funds related to the process and Parliament prohibited from submitting the Bill to the President for assent, even if passed.

The group is seeking a declaration that the Constitution of Kenya (Amendment) Bill, 2025, is a misuse of public funds and a violation of principles of good governance, responsible spending, and sustainable development.

In addition, the petition calls on the court to declare that both Houses of Parliament have broken the law and failed in their duties by not passing a law to guide referendum processes, 14 years after the current Constitution came into force.