The National Assembly was on Friday, May 2, taken to court by the Katiba Institute and other civil society organisations over the recent plan to amend the Constitution through the introduction of three contentious funds.
Through a press release, Katiba announced it had filed a petition at the High Court challenging the Constitution of Kenya (Amendment) Bill, 2025, that seeks to introduce the National Government Constituency Development Fund (NG-CDF), the Senate Oversight Fund (SOF), and the National Government Affirmative Action Fund (NGAAF).
In its petition, Katiba Institute argued that the entire Bill is constitutionally superfluous, and the funds it seeks to create are inconsistent with the letter and spirit of the Constitution.
“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,” Katiba argued.
Also, Katiba argued that provisions of the Bill would need to be approved in a referendum. “Therefore, Parliament should 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,” they posited.
In their position, the lobby group contended that the amendments are unnecessary because efforts by Rarieda MP Otiende Amollo and Ainabkoi MP Samuel Chepkonga in sponsoring the Bill, can still be done lawfully under the Constitution as it is.
They averred that the proposed NGAAF is currently being implemented through the Public Finance Management Act (National Government Affirmative Action Fund) Regulations, 2016. Article 206(1)(a) of the Constitution allows for the creation of special-purpose Funds.
On the other hand, they argued that various court decisions, including that of the Supreme Court, have emphasised that the proposed NG-CDF can be lawfully implemented within the confines of the current Constitution.
Also, the proposed SOF is presently implemented through the budgetary provisions relating to Parliament under the Constitution.
Katiba opined that the proposed amendments would conflict with other related provisions of the Constitution and the principles that they establish. They argued that some of the Funds being established would result in either a duplication of functions or a clash of functions between the county and national governments.
Consequently, the lobby group sought orders at two levels: before and after the petition was heard. Before hearing, Kaitba issued five demands to the court. It sought the court’s intervention to suspend the public participation exercise scheduled for 5 May 2025 to 7 May 2025 and stop the Controller of Budget from approving any money for public participation.
Also, it hoped for the court to bar Parliament from forwarding the Bill, if approved, to the President for assent. Another demand issued was the court to bar the President from assenting to the bill if approved and forwarded to him. Finally, they recommended that the Chief Justice selects at least three(3) judges to hear and determine the petition.
After the hearing, demands issued by Katiba Institute were centered around declarations that the Bill in all its entirety be considered unconstitutional.
