The High Court has issued conservatory orders barring the National Assembly from forwarding the Constitution (Amendment) Bill, 2025, that sought to entrench the NG-CDF kitty into the Constitution, to President William Ruto for assent.
In a ruling issued on Thursday, September 18, Justice Lawrence Mugambi halted the ascension to law of the Bill, pending the determination of the case.
At the same time, the court ordered that even if consent is granted, it won't be effective until the petition is decided.
In addition to the directives, the court instructed Chief Justice Martha Koome to form an uneven panel of judges to consider the petition submitted by the Katiba Institute.
The petition had challenged a bid by Parliament to introduce the National Government Constituency Development Fund (NG-CDF), the Senate Oversight Fund (SOF), and the National Government Affirmative Action Fund (NGAAF) into the Constitution.
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.
The lobby group argued that the Constitution, as it stands, still permits the efforts of Rarieda MP Otiende Amollo and Ainabkoi MP Samuel Chepkonga to sponsor the Bill, so the amendments are unnecessary.
They claimed that the Public Finance Management Act (National Government Affirmative Action Fund) Regulations, 201,6 are currently being used to implement the proposed NGAAF. Special-purpose funds may be established in accordance with Article 206(1)(a) of the Constitution.
However, they contended that the Supreme Court and other court rulings have emphasised that the proposed NG-CDF can be legitimately implemented within the parameters of the existing Constitution.
The Bill had already passed the National Assembly's Third Reading stage prior to the decision, but the Senate had not yet done so.
