Civil Society Groups Move to Halt Public Participation on NG-CDF, NGAAF, and SOF Amendments
Five civil society organisations have filed a petition at the High Court seeking to stop the planned public participation forums on the proposed constitutional amendments aimed at entrenching three funds: the National Government Constituencies Development Fund (NG-CDF), the National Government Affirmative Action Fund (NGAAF), and the Senate Oversight Fund (SOF).
The public participation forums were scheduled to take place from May 5 to May 7, 2025. However, the petitioners, led by Katiba Institute, argue that the amendments are not only unnecessary but also potentially unconstitutional.
Challenging the Constitution of Kenya (Amendment) Bill, 2025
At the heart of the dispute is the Constitution of Kenya (Amendment) Bill, 2025, which proposes to formally entrench NG-CDF, NGAAF, and SOF into the Constitution. The civil society organisations contend that all three funds can be lawfully implemented under the current legal and constitutional framework and do not require elevation to constitutional status.
They argue that the proposed entrenchment may be politically motivated and could distort the principle of separation of powers and prudent public financial management enshrined in the Constitution of Kenya, 2010.
NG-CDF: Existing Legal Jurisprudence Supports Implementation Without Amendment
The petitioners have pointed to existing court decisions, including rulings by the Supreme Court, which affirm that the NG-CDF can be implemented lawfully without requiring a constitutional amendment. They argue that past jurisprudence has clearly established that the fund’s objectives and operational structure can be aligned with the Constitution when implemented correctly through statutory and administrative channels.
Their concern, therefore, is that constitutionalising the NG-CDF could entrench potential misuse or mismanagement, shielding it from necessary legislative oversight and reform.
NGAAF: Already Anchored in Statutory Law
Regarding the National Government Affirmative Action Fund (NGAAF), the petitioners state that it is currently operational and regulated under existing law—specifically, the Public Finance Management Act (National Government Affirmative Action Fund) Regulations, 2016. They argue that this legal framework already provides a sufficient basis for the fund’s existence and operations.
As such, they maintain that embedding NGAAF in the Constitution would be duplicative and could risk rigidifying its structure, making it difficult to amend or improve in future through ordinary legislative processes.
SOF: Senate Oversight Already Provided for in the Constitution
The civil society organisations further assert that the Senate Oversight Fund (SOF), as envisioned in the amendment bill, is not a new concept. They argue that oversight functions by the Senate are already facilitated through budgetary allocations to Parliament, as provided in the current constitutional framework.
According to the petitioners, creating a constitutionally-entrenched fund for this purpose may introduce unnecessary complications and dilute existing financial accountability mechanisms.
Seeking Immediate Court Intervention
In their petition, the organisations are asking the High Court to issue a conservatory order to stop Parliament from forwarding the amendment bill to President William Ruto for assent. They argue that advancing the bill at this stage, while serious legal and constitutional issues are under judicial review, would be premature and potentially unlawful.
Additionally, they have requested the court to prohibit the Controller of Budget from approving any expenditure related to the planned public participation activities. They claim that the use of public funds for such activities, when the legality of the underlying bill is in dispute, constitutes misuse of public resources.
Request for an Expanded Bench
Given the constitutional significance of the issues raised, the petitioners have urged the court to certify that their petition raises “substantial questions of law” under Article 165(4) of the Constitution. They have requested the empanelment of an uneven number of judges—not less than three—to hear and determine the matter.
This move reflects the petitioners’ view that the proposed amendments have far-reaching implications for constitutional governance, public finance, and legislative processes in Kenya.
Broader Implications for Constitutional Integrity
Beyond the specifics of NG-CDF, NGAAF, and SOF, the civil society organisations warn that the amendment bill sets a dangerous precedent. By seeking to constitutionalise funds that can be—and in some cases already are—implemented through ordinary legislation, the process may open the door for further politicisation of the Constitution.
They caution that the Constitution should not be used to formalise policy preferences or administrative arrangements, especially when these can be addressed through existing statutory tools. Doing so, they argue, could undermine the flexibility and dynamism necessary in a functioning democratic system.
Awaiting the Court’s Determination
As the High Court prepares to consider the matter, attention will now shift to whether it grants the conservatory orders and whether an expanded bench will be constituted to hear the case. The ruling could have significant implications not just for the fate of NG-CDF, NGAAF, and SOF, but also for the constitutional amendment process in general.
This legal challenge, led by organisations known for their advocacy on constitutionalism and governance, marks a pivotal moment in the ongoing debate over the appropriate use of Kenya’s Constitution. The final decision will likely influence how future policy initiatives are handled—whether through constitutional change or within the bounds of the current legal framework.
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Civil Society Groups Move to Halt Public Participation on NG-CDF, NGAAF, and SOF Amendments
