The Blurry Lines: Separation of Powers at Risk in Kenya’s Constitutional Battle over Government Funds

In July 2025, Kenya’s National Assembly approved a constitutional amendment to entrench three development funds, despite repeated court rulings striking down similar schemes for breaching separation of powers and undermining devolution. In this article, Evans O. Ogada traces the litigation history of these funds and argues that the 2025 Bill represents an attempt to override binding judicial decisions. With the amendment moving to the Senate and subject to multiple legal challenges, Kenya faces a pivotal test of whether constitutionalism and the rule of law can endure in the face of legislative defiance.

Introduction

The Constitution of Kenya (Amendment) Bill, 2025, which was passed by the National Assembly in July 2025 and is now due to be transmitted to the Senate for consideration, seeks to amend Article 204 of the Constitution of Kenya to formally entrench three development funds: the existing National Government Constituencies Fund (NG-CF) and National Government Affirmative Action Fund (NGAAF), and a new Senate Oversight Fund (SOF).

All three funds have been criticized for undermining devolution and breaching the constitutional separation of powers by giving legislators responsibilities that should belong to the executive.

The NG-CF is a state-run fund that allocates public money to constituencies for local development projects. The NGAAF is a fund established to support projects targeting marginalized populations, including women, youth, and persons with disabilities. Meanwhile, the SOF is a proposed new fund intended to reinforce the Senate’s oversight role over county governments. All three funds have been criticized for undermining devolution and breaching the constitutional separation of powers by giving legislators responsibilities that should belong to the executive.

The passing of this Bill has sparked considerable debate, notably because the amendment is deemed to go against several court decisions that have found the NG-CF and its predecessor, the Constituencies Development Fund (CDF), unconstitutional for going against the interests of counties and Kenya’s devolution system as a whole. Against this backdrop, this article will examine the legal and historical context of the NG-CDF, the constitutional violations identified by the courts, and the broader implications of the proposed amendment, while highlighting its shortcomings and the criticism it has attracted.

A Long History of Constitutional Challenges

As mentioned, the Bill was introduced after a long history of court decisions challenging the constitutionality of the NG-CF’s predecessor, the CDF. The CDF, established under the 2013 Constituency Development Fund Act (CDF Act), mandated that at least 2.5% of the government’s annual ordinary revenue be allocated to constituencies, using a formula that combined equal distribution with poverty-based weighting. Its goal was to address the uneven progress of development projects in Kenya. Unlike previous initiatives, it aimed to democratize development by empowering local communities to identify and implement priority projects. However, it soon faced legal scrutiny.

High Court Judgment

In 2013 and 2015, civil society groups including the Institute for Social Accountability (TISA) and the Centre for Enhancing Democracy and Good Governance (CEDGG) filed constitutional petitions challenging the 2013 CDF Act, arguing that it violated the separation of powers and devolution.

In February 2015, the High Court declared the CDFA unconstitutional and invalid, finding that it violated the separation of powers by involving Members of Parliament (MPs) in the planning, approval, and implementation of projects—functions reserved for the executive. This, the Court held, undermines key governance principles, including devolution, accountability, and good governance. However, the order of invalidity was suspended for twelve months to allow the government time to address the Bill’s shortcomings.

Court of Appeal and Supreme Court Judgments

The High Court’s decision had significant implications for the future of the CDF and prompted an appeal by the National Assembly to the Court of Appeal. In 2017, the Court of Appeal delivered a judgment partially overturning the High Court’s ruling. In response, TISA filed an appeal to the Supreme Court, officially lodged in 2018. The National Assembly followed with a cross-appeal in 2019, challenging aspects of the Court of Appeal’s findings.

In August 2022, the Supreme Court eventually declared the CDFA of 2013 unconstitutional in some material respects, essentially affirming the High Court’s decision, finding that the Act conflicted with Kenya’s devolved governance structure by assigning functions constitutionally reserved for counties. It held that the CDF’s direct allocation of 2.5% of national revenue to constituencies bypassed the equitable revenue-sharing mechanism under Articles 202(1) and 218(1)(a), while the creation of a parallel service delivery structure undermined county executives’ mandates under Article 179(1). The Court also found that the involvement of MPs in project implementation violated principles of accountability (Article 201(d)) and good governance (Article 10).

The Court notably emphasized that the Constitution establishes only two distinct but interdependent levels of government (national and county) and prohibits third-tier structures. The CDF’s community-based projects were deemed to overlap with county functions (for example in the fields of health and transport), leading to duplication, wastage, and accountability gaps. While acknowledging public support for the CDF, the Court suggested alternative funding mechanisms aligned with constitutional principles, such as conditional grants to counties.

Repacking Unconstitutionality: The 2015 NG-CDF Act

Following the 2015 High Court ruling that declared the 2013 CDF Act unconstitutional, the National Government Constituencies Development Fund (NG-CDF) Act of 2015 was introduced. However, it suffered the same fate as its predecessor. In September 2024, the High Court declared it unconstitutional, stating that—despite amendments in 2022 and 2023 aimed at improving governance and equity—it violated the principles of devolution and caused duplication of roles.

Although some problematic provisions were repealed in 2023, [Members of Parliament] remained involved in the administration of the fund, posing a continued risk of conflict with their oversight mandate.

In its decision, the High Court affirmed that Kenya’s 2010 Constitution upholds the principle of separation of powers among the executive, legislature, and judiciary to prevent institutional conflicts and ensure effective oversight. However, the Court found that the NG-CDF Act blurred these boundaries by assigning the National Assembly roles such as approving board members and constituency committees, and by linking the tenure of fund account managers to the electoral cycle of MPs. Although some problematic provisions were repealed in 2023, MPs remained involved in the administration of the fund, posing a continued risk of conflict with their oversight mandate.

The Court further noted that the Constitution establishes national and county governments as distinct and interdependent entities, with neither subordinate to the other. The NG-CDF Act’s service delivery role, though arguably well-intentioned, created parallel systems that operated outside the devolved framework, thereby conflicting with the constitutional structure. Importantly, the Court noted that Article 95 of the Constitution confines the National Assembly to legislation, representation, and oversight—not direct project implementation—making MPs’ involvement in fund administration unconstitutional.

Given these constitutional violations, the Court called on the NG-CF, along with all associated programs, projects, and activities to be discontinued by 30 June 2026, reaffirming that constituencies are units of political representation, not service delivery.

Constitutional Entrenchment of an Unconstitutional Fund?

The recently introduced Constitution of Kenya (Amendment) Bill, 2025 should be understood against this historical backdrop: it represents the National Assembly’s effort to constitutionally entrench the NG-CF despite its having been declared unconstitutional by multiple courts and ordered to cease operations by June 2026. This undermines both the separation of powers and rule of law. The judiciary is entrusted with interpreting the Constitution and checking legislative overreach, while Parliament is bound to operate within constitutional limits. Such defiance weakens governance, erodes public trust, and sets a dangerous precedent in which institutions act above the Constitution.

[T]he proposed amendments do not sufficiently reinforce or clarify the division of responsibilities between the legislature and the executive.

The Bill outlines distinct purposes for the entrenchment of each fund: the NG-CDF is designed to support the delivery of exclusive national government functions at the constituency level, the SOF aims to strengthen the Senate’s oversight role over county governments, while the NGAAF is meant to bolster the national government’s affirmative action initiatives. However, the proposed amendments do not sufficiently reinforce or clarify the division of responsibilities between the legislature and the executive.

According to Articles 183 and 225 of the Constitution, county executives are responsible for managing and implementing county budgets, while the allocation and distribution of national revenue is governed by constitutional mechanisms involving the Commission on Revenue Allocation, Parliament, and the Controller of Budget. Legislators, whose mandates are expressly set out in Articles 94 to 96 of the Constitution, play a central role in approving and overseeing revenue sharing and budgetary allocations, but do not implement or administer the use of funds. In this regard, the Constitution of Kenya (Amendment) Bill, 2025 appears to have inadequately addressed the separation of powers concerns raised in the court cases.

Shortcomings of the 2025 Bill and Criticism

Several challenges have been raised against the proposed amendments, including a number of petitions lodged before the High Court in Nairobi: Petition E234 of 2025 (Katiba Institute v. State Law Office), Petition E281 of 2025 (Suyianka Lempa v. State Law Office), and Petition 487 of 2025 (Paul Mwangi, Advocate v. State Law Office). The petitions raise concerns over the absence of a referendum law, the alleged disregard of prior judicial rulings regarding the NG-CDF, and purported violations of the constitutional principle of separation of powers. Other critics also argue that the Bill is constitutionally unnecessary and that the funds it seeks to entrench conflict with both the explicit provisions and underlying principles of the Constitution. It has also been asserted that the Bill, along with any related procedures—including public participation—lack legitimate purpose and contravene the constitutional requirements for fiscal responsibility and prudent use of public resources.

It is also posited that the Bill’s proposed funding mechanisms are already being implemented through the Public Finance Management Act (National Government Affirmative Action Fund) Regulations, 2016. The criticism therefore is that the proposed amendments are constitutionally unnecessary and represent a superfluous duplication of roles between the executive and legislative branches. The argument rests on the principle that the Constitution clearly delineates roles in resource allocation: the executive is responsible for budget formulation and implementation, while the legislature, guided by the Commission on Revenue Allocation’s recommendations, exercises its mandate through approval, oversight, and determination of revenue-sharing arrangements.

Finally, some claim that certain provisions of the Bill require approval through a referendum to be amended, according to Article 255 of the Constitution. Yet, as the Supreme Court described in the case of Attorney-General & Others v David Ndii & Others, Kenya lack the necessary referendum legislation to facilitate such a process. This legal gap undermines the Bill’s feasibility, as has been argued in one of the constitutional petitions filed in the High Court.

Conclusion and Next Steps

Overall, the Constitution of Kenya (Amendment) Bill, 2025 risks undermining Kenya’s constitutional order by seeking to revive and entrench a fund that has been declared unconstitutional. This violates core principles of devolution, separation of powers, and fiscal accountability. By disregarding binding judicial decisions and entrenching executive functions to MPs, the Bill risks eroding institutional checks and balances, weakening governance, and defying the foundational values of the Kenyan Constitution.

During its second and third reading at the National Assembly, the Bill secured the support of 233 Members—the threshold required for constitutional amendments. According to the constitutional amendment procedure under Article 256 of the Constitution, the Bill is now due to be transmitted to the Senate for consideration. However, a significant procedural gap exists within Kenya’s legislative framework: it does not prescribe mandatory timelines for the Senate to act on such a Bill once forwarded by the National Assembly. It therefore remains uncertain how promptly, or even whether, the Senate will deliberate on the Bill, leaving its progression and ultimate fate within the legislative process unresolved.

What is at risk goes beyond the question of development funds; it is the survival of constitutionalism itself—whether Kenya will uphold the rule of law or yield to the whims of those determined to distort it.

Evans O. Ogada is an advocate and legal researcher based in Kenya. He serves as Editor-in-Chief of The Platform for Law, Justice and Society and chairs the Rule of Law Committee of the East Africa Law Society. His work centers on legal scholarship, public interest litigation, and judicial reforms across Africa.

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Suggested citation: Evans O. Ogada, ‘The Blurry Lines: Separation of Powers at Risk in Kenya’s Constitutional Battle over Government Funds’, ConstitutionNet, International IDEA, 29 August 2025, https://constitutionnet.org/news/voices/blurry-lines-separation-powers-risk-kenyas-constitutional-battle-over-government-funds

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