The High Court of Kenya has declared the National Government Constituency Development Fund (NG-CDF) Act of 2015 unconstitutional. The ruling, delivered by a three-judge bench comprising Justices Kanyi Kimondo, Mugure Thande, and Roselyne Aburili, set a deadline for the cessation of the fund and all its related programmes and activities by June 30, 2026.
The NG-CDF, which has been operational since 2003, has played a significant role in driving development at the grassroots level across the country’s 290 constituencies. It has financed projects in education, infrastructure, healthcare, and other sectors. However, its legality has been a subject of contention, with activists challenging its constitutional validity.
Legal Challenge and Key Arguments
The case against NG-CDF was initiated by activist Wanjiru Gikonyo, who argued that the fund violates the Constitution of Kenya. According to Gikonyo, the NG-CDF Act creates a third layer of governance, something that is not provided for in the Constitution, which only recognizes two levels of government—the national and county governments.
The petitioners highlighted several constitutional violations, the most critical being the breach of the principle of separation of powers. They contended that the involvement of Members of Parliament (MPs) in managing and overseeing the fund interfered with the functions of both the executive branch and the Public Service Commission. They argued that MPs, as legislators, should not have direct control over funds meant for development projects, as it blurs the lines between legislative and executive functions.
Furthermore, the petitioners pointed out that the NG-CDF Act encroached on the constitutional division of functions between the national and county governments. By financing projects that fall under county governments’ purview, the fund violated the spirit of devolution. Additionally, the petitioners argued that the Senate, the body constitutionally mandated to safeguard devolution, had been sidelined in the enactment of the law.
Court’s Rationale for the Ruling
In their ruling, the three judges acknowledged the significant impact the NG-CDF has had on local communities across the country, noting that its projects and programmes have provided valuable resources and services to Kenyans at the grassroots level. However, they maintained that the 2015 Act, even with its 2023 amendments, remained unconstitutional.
“We are also alive to the fact that there are short, medium, and long-term projects being implemented by the fund. We are now in the middle of the financial year, and funds may have been allocated for ongoing projects,” the judges noted in their ruling.
They emphasized that while the fund’s unconstitutional status could not be overlooked, it would not be in the best interest of the nation or justice to bring its operations to an immediate halt. Abruptly stopping the NG-CDF could harm communities that rely on its ongoing projects. Therefore, the court allowed a transition period, giving the fund until June 30, 2026, to wind down its operations.
MPs’ Defense and Public Concerns
Despite the ruling, many MPs have expressed concern over the implications of scrapping the NG-CDF. Led by Eldama Ravine MP Moses Lessonet, the lawmakers argued that the fund plays an essential role in addressing the socio-economic needs of Kenyans at the grassroots level.
“The NG-CDF is nationwide and benefits a lot of people, especially those at the grassroots level,” Lessonet stated, arguing that scrapping the fund would violate the socio-economic rights of many citizens who depend on the development projects it supports.
For many Kenyans, the NG-CDF has become synonymous with progress and community development. From building schools to improving healthcare facilities and road infrastructure, the fund has been a lifeline for many underdeveloped areas. The fear of losing such direct support from their elected representatives has fueled concerns that citizens may suffer from reduced development activity in the near future.
Conclusion
While the ruling acknowledges the transformative nature of the NG-CDF, it ultimately upholds the Constitution by striking down the Act on the grounds of its inconsistency with Kenya’s governance structure. As Kenya navigates this transition, it remains to be seen how both the national and county governments will step in to fill the gap left by the fund.
With a deadline set for June 30, 2026, lawmakers, activists, and citizens alike have a few years to plan for the fund’s cessation and ensure that the socio-economic needs of Kenyans, especially those at the grassroots level, continue to be met.
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