Kenyan court halts constitutional amendment bill to entrench three controversial funds

Justice Lawrence Mugambi issued the conservatory order, ruling that public interest lay in stopping the process until the case is heard and determined. He warned that once assented to as law, the Bill could not be reversed except through another constitutional amendment.

“Pending the hearing and determination of this petition, a conservatory order is hereby issued forbidding and or preventing the forwarding of the Constitution of Kenya Amendment Bill to the President for assent. If assented to, the same shall not take effect until the petition is heard and determined,” the judge is quoted by Nation.Africa.

What the Bill seeks to do

The Bill, co-sponsored by MPs Otiende Amollo (Rarieda) and Samuel Chepkonga (Ainabkoi), aims to enshrine the National Government Constituencies Development Fund (NG-CDF), the Senate Oversight Fund (SOF), and the National Government Affirmative Action Fund (NG-AAF) into the Constitution.

The Bill sailed through the National Assembly with overwhelming support, with 304 MPs voting in favour at Second Reading and 298 at Third Reading, clearing the two-thirds threshold. It is currently before the Senate for debate and approval. 

Why did the court step in?

Several civil society groups, including the Katiba Institute, the Kenya Human Rights Commission, and Transparency International, challenged the Bill. They argued that Parliament was amending the Constitution without first passing a referendum law, despite Article 255(1) requiring some amendments to be subjected to a public vote.

The petitioners also faulted lawmakers for attempting to constitutionalise the NG-CDF despite it having been declared unconstitutional three times - by the High Court, Court of Appeal, and Supreme Court - for violating the principle of separation of powers.

“The Bill contains provisions that will need to be approved in a referendum. Therefore, Parliament should be compelled to enact a referendum law, which it has failed to do for the past 14 years,” Katiba Institute argued.

However, the Attorney-General, the Director of Public Prosecutions, and the National Assembly opposed the petitions, insisting the court had no jurisdiction and that the lawmaking process was within Parliament’s powers.