Raila Odinga’s lawyer, Paul Mwangi, has moved to court to challenge the proposed constitutional amendment seeking to entrench the National Government Constituency Development Fund (NG-CDF) and two other public funds into law.
In a petition filed at the High Court, Mwangi seeks to have the court determine whether the Constitution of Kenya (Amendment) Bill, 2025, should be subjected to a national referendum before enactment.
The Bill, which Parliament passed in June, is co-sponsored by Rarieda MP Otiende Amollo and Ainabkoi MP Samuel Chepkonga.
The proposed law aims to formally embed three key funds into the Constitution: the NG-CDF, the Senate Oversight Fund, and the National Government Affirmative Action Fund (NGAAF). Proponents argue that the move will provide a stronger legal foundation and safeguard the existence of the funds from future court challenges.
However, Mwangi argued that the Bill seeks to amend parts of the Constitution that fall under Article 255(1), which requires a referendum before any change can be effected.
Additionally, he said that matters such as the structure of devolved government, the independence of the judiciary, and the separation of powers cannot be altered by parliamentary vote alone.
He further cited Article 256(5), which stipulates that if a constitutional amendment relates to any of the matters listed in Article 255(1), then it must be submitted to the people in a referendum after parliamentary approval. According to Mwangi, bypassing this process would be unconstitutional.
Meanwhile, the principal aim of the constitutional amendment is to provide legal certainty and constitutional protection to the three funds. The NG-CF is designed to enhance equitable access to national government services, particularly in education and infrastructure at the grassroots level.
The SOF will strengthen the Senate’s oversight role over county governments, while the NGAAF will enhance support for vulnerable groups, including women, youth, and persons living with disabilities.
On May 2, the Katiba Institute and several civil society organisations took the National Assembly to court over its plan to amend the Constitution by including the three funds.
In its petition, the Katiba Institute argued that the entire Bill is constitutionally superfluous, and that 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.
