Entrenchment of the National Government-Constituency Development Fund (NG-CDF), the Senate Oversight Fund and the National Government Affirmative Action Fund (NGAAF) into the constitution is well meaning.

However, there are several insurmountable constitutional challenges to the establishment of any such funds under the Constitution.
The Supreme Court had ruled that NG-CDF was unconstitutional because it entangles the legislature into expenditure of the funds that are not contemplated under the structure of the government as at the moment. Funds for local development should be channeled through the national government directly or through county governments.

The management of these funds violates the principles of separation of powers and checks and balances. If the Senate fund is created and entrenched into the Constitution for oversight purposes, County Assemblies would also demand for an oversight fund too. There would be no justification of giving funds to the MPs and leaving out MCAs.

Members of the National Assembly argue that entrenchment of decentralized funds into the Constitution would ensure that the critical role they play in promoting national development and empowerment of the vulnerable persons is safeguarded. The move, they argue will guarantee avenues for facilitation and implementation of the national government functions in all parts of the Republic pursuant to Article 6 (3) of the Constitution.

The National Dialogue Committee (NADCO) in its report recommended the entrenchment of the three funds with a rider that Parliament should enact legislation to provide clarity on their purpose and align them as national government functions.

It should also be noted that the Supreme Court ruled that the National Government Constituencies Development Fund (NG-CDF) Act 2013 is unconstitutional. This decision, made in March 2025, found that the Act violated the principle of separation of powers and the division of functions between the national and county governments.

Specifically, the court determined that involving MPs in the planning, approval, and implementation of NG-CDF projects violated the doctrine of separation of powers and undermined national values like devolution and accountability.

The court also noted that the CDF Act 2013 violated the division of functions between national and county governments.

And now the Members of the National Assembly who are currently in recess, are mobilizing their constituents to participate in a public participation whose outcome is already established. The manner in which public participation exercise is being conducted leaves a lot to be desired.

Article 256(2) of the Constitution provides that ‘Parliament shall publicize any Bill to amend the Constitution, and facilitate public discussion about the Bill.’’ It is for this reason that the MPs have no alternative but to conduct a granular public participation exercise on the Constitution of Kenya (Amendment) Bill, 2025.”

The public participation being conducted currently does not conform to what the Constitution intended to be achieved.

Firstly, the MPs who are patrons of the NG-CDF are the same ones mobilizing their constituents and the same ones giving their views to the media on how the fund has helped the locals. In conducting public participation, the citizens should be taken through the document, the pros and the cons and be allowed to give their views without any undue influence.

While Public participation is a core principle in the Kenya Constitution, enshrined in Article 10(2) and Article 118(1), which mandates that Parliament to facilitate public involvement in legislative and other parliamentary business, ensuring open and transparent processes, it must be done in a manner that the outcome is not pre-determined.

MPs cannot have their cake and it.

— The writer is the Chairman of Political Journalists Association of Kenya (PJAK)