The High Court has declared the National Government Constituency Development Fund (NG-CDF) unconstitutional, a decision that could reshape the landscape of public resource management in Kenya. This verdict, delivered on Friday, underscores significant concerns about the fund’s alignment with the principles of devolution and separation of powers outlined in the Kenyan Constitution.
The three-judge bench, comprised of Judge Kanyi Kimondo, Justice Mugure Thande, and Lady Justice Roselyne Aburili, ruled that the Constitution does not empower the National Assembly to undertake functions at the constituency level. The judges highlighted that the NG-CDF created unnecessary duplication of activities, leading to wastage of scarce public resources. “The National Government Constituency Development Fund 2015, as amended in 2022 and 2023, is hereby declared unconstitutional,” Judge Kimondo stated.
While the court agreed on the fund’s unconstitutionality, it allowed MPs until June 30, 2026, to continue managing ongoing projects. This extension aims to ensure that critical community initiatives are not abruptly disrupted. However, Justice Mugure Thande dissented, arguing that prolonging the fund’s life would permit the continuation of an illegality.
The ruling reflects ongoing concerns regarding the structure of devolution in Kenya. The judges emphasized that the NGCDF undermined the intended distribution of powers, turning MPs into service providers rather than legislative representatives. They expressed that the creation of constituencies as delivery levels adversely affected the devolution framework, resulting in wasted resources.
Additionally, the ruling raised questions about the failure to involve the Senate in the passage of the NG-CDF Act, which has far-reaching implications for devolved functions.
This landmark decision stems from a case filed in 2016 by the Institute for Social Accountability and the Centre for Enhancing Democracy and Good Governance. Their challenge brought to light critical issues about accountability and the need for constitutional adherence in the management of public funds.
