MPs in desperate move to save NG-CDF as law experts term attempt futile
Chepkonga explained that the proposed amendments aim to safeguard the funds' role in promoting public participation in identifying development projects at the constituency level.
Members of Parliament are not yet ready to let go of the existence of the National Government- Constituency Development Fund (NG-CDF), which has been declared unconstitutional, despite legal experts warning about the futility in their latest move.
Multiple court rulings have declared the constituency fund unconstitutional.
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The MPs have launched their third attempt to anchor the NG-CDF, the Senate Oversight Fund, and the National Government Affirmative Action Fund in the Constitution.
In a notice placed in one of leading dailies, the clerk of the National Assembly Samuel Njoroge on 15, March, 2025 asked Kenyans to submit their view on a fresh Bill seeking to entrench the NG-CDF in the Constitution.
The Bill, referred to as the National Assembly Bill No. 4 of 2025 is sponsored by Ainabkoi MP Samuel Chepkong’a and his Rarieda counterpart Otiende Amollo.
“The National Government Constituencies Fund for purposes of ensuring reasonable access to exclusive national government functions in all constituencies as envisaged in Article 6(3) of the Constitution and ensure the participation of the people in the identification and implementation of priority national government programmes,” says the notice.
The National Assembly Department of Justice and Legal Affairs expects to receive all submissions before Tuesday, June 10, 2025.
But legal experts who spoke to The Eastleigh Voice termed the MPs’ attempts as futile, urging them to stick to their core mandates of oversight and legislation.
Unconstitutional
Lawyer Evans Ogada, who specialises in constitutional and administrative law litigation, says the attempt to amend the Constitution and place the CDF as an enumerated item is unconstitutional, more so for the reason that there is an existing decision by the High Court that declares that very fund unconstitutional.
“Having MPs preside over such a fund blurs the lines between the role of the executive and that of the legislature. The executive should be in charge of resource allocation. It also amounts to a violation of the separation of powers, when Parliament purports to change the Constitution to defeat a decision made by the Courts,” notes Ogada.
Lawyer Willis Otieno, who is an expert in litigation, governance, public law, elections, constitutional and administrative law, says such an amendment would have to be subjected to a referendum since the continued application of CDF must be understood within the context of the devolved framework.
“CDF cannot be operationalised outside the framework of the devolved system.”
A similar attempt in the 12th Parliament, co-sponsored by Matungulu MP Stephen Mule and Gichugu MP Githinji Gichimu, could not be completed before the House adjourned.
Chepkonga explained that the proposed amendments aim to safeguard the funds' role in promoting public participation in identifying development projects at the constituency level.
"By entrenching these funds in the Constitution, we eliminate the risk of further legal challenges. This secures the future of our children and communities," he said.
He also highlighted that embedding the Senate Oversight Fund and National Government Affirmative Action Fund in the Constitution would empower the Senate to perform its oversight role effectively and enhance access to resources for marginalised groups such as youth, women, persons with disabilities and the elderly.
In September last year, the High Court ruled the NG-CDF unconstitutional, citing violations of the principle of separation of powers and MPs' failure to consult the Senate.
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