The Katiba Institute, alongside four other civil society groups, has filed a petition at the High Court opposing the National Assembly’s recent attempt to amend the Constitution to entrench various public funds, including the National Government Constituency Development Fund into the constitution (NG-CDF).
In a statement on May 2, 2025, the Institute argued that certain provisions within the Bill can only be enacted through a referendum.
“The entire Bill is constitutionally superfluous, and the Funds it seeks to create are inconsistent with the letter and spirit of the Constitution,” read part of the constitution.
“The Bill and any associated processes, including the scheduled public participation, are unnecessary and violate the Constitutional requirement for prudence and responsibility in public spending.”
As such, Katiba Institute is seeking a court order compelling Parliament to pass a referendum law before initiating any constitutional amendment process.
Katiba Reasons for Blocking the Bill
The Institute further argues that the proposed constitutional amendments are unnecessary, as the objectives they aim to achieve can already be lawfully accomplished under the current Constitution.
For example, the National Government Affirmative Action Fund (NGAAF) is already operational through the Public Finance Management (National Government Affirmative Action Fund) Regulations, 2016, as permitted under Article 206(1)(a) of the Constitution, which allows the establishment of special-purpose funds.
At the same time, various court rulings, including a decision by the Supreme Court, have affirmed that the National Government Constituencies Development Fund (NG-CDF) can be implemented within the framework of the existing Constitution.
Additionally, the functions envisioned under the proposed Senate Oversight Fund (SOF) are already facilitated through the constitutional budgetary provisions allocated to Parliament.
Also Read: Parliament Announces Next Move After Court Declared NG-CDF Unconstitutional
Why a Referendum Law Is Essential
According to the Katiba, a referendum law is essential before any constitutional amendment.
Hence, the Constitution of Kenya mandates Parliament to enact a referendum law to guide any process that seeks to alter its most fundamental provisions.
This requirement, Katiba adds, is rooted in the principle that constitution-making and amendment processes must be governed by clear, predictable, and transparent rules.
Also Read: Should Best Performing MPs Receive Higher NG-CDF Allocation?
Katiba Issues Demands
Before the petition is heard, Katiba Institute has asked the court to issue interim orders to halt the constitutional amendment process. Specifically, the Institute seeks orders to:
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Suspend the public participation exercise scheduled for May 5 to 7, 2025.
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Stop the Controller of Budget from approving any funds allocated for the exercise.
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Bar Parliament from forwarding the Bill to the President for assent, even if approved.
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Restrain the President from signing the Bill into law if it is presented to him.
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Recommend that the Chief Justice empanel a bench of at least three judges to hear and determine the petition.
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