By Andrew Kariuki
The Court of Appeal has overturned a High Court judgment that had declared the National Government Constituencies Development Fund (NG-CDF) unconstitutional, setting aside the earlier decision and reopening the legal debate on the fund’s status under the Constitution.
In its ruling, the appellate court held that the High Court erred in law and in its interpretation of the Constitution when it invalidated the NG-CDF framework, finding that the issues raised had not been properly resolved to justify such far-reaching orders.
The judges faulted the High Court for issuing final declarations that effectively dismantled a statutory scheme without adequately considering the constitutional architecture governing public finance, the role of Parliament and the doctrine of separation of powers.
The Court of Appeal found that the High Court failed to sufficiently interrogate whether the alleged constitutional defects could be cured through legislative or administrative measures, rather than outright nullification of the fund.
It also noted that the High Court did not fully address the practical implications of its orders, including the impact on ongoing development projects and the interests of communities that rely on NG-CDF-funded programmes.
As a result, the appellate court set aside the declaration of unconstitutionality and the consequential orders that had flowed from the High Court judgment.
The Court of Appeal emphasised that questions touching on the structure, management and oversight of NG-CDF require a careful and contextual constitutional analysis, particularly where Parliament has enacted legislation intended to align the fund with constitutional requirements.
The legal battle over the NG-CDF began when civil society organisations and constitutional petitioners moved to court challenging the legality of the fund, arguing that it violated the doctrine of separation of powers by assigning executive functions to legislators, contrary to the Constitution.
In its judgment, the High Court found that the NG-CDF framework unlawfully places Members of Parliament at the centre of identifying, approving and implementing development projects, roles that the Constitution reserves exclusively for the Executive.
The court held that MPs are constitutionally mandated to legislate, represent and oversee government, and not to execute development programmes or manage public funds.
The High Court further ruled that attempts by Parliament to amend the NG-CDF Act did not cure the fund’s constitutional defects, noting that legislative amendments cannot override clear constitutional boundaries.
It found that the NG-CDF creates a parallel system of governance that undermines accountability structures established under the Constitution.
While declaring the NG-CDF unconstitutional, the High Court suspended the declaration of invalidity until 30 June 2026, citing the need to avoid disruption of ongoing projects and to allow Parliament and the Executive time to develop constitutionally compliant mechanisms for funding development at the constituency level.
The judgment was subsequently challenged at the Court of Appeal, with appellants arguing that the NG-CDF serves an important development role and that Parliament has the authority to legislate for such funding frameworks.
The ruling means that the NG-CDF framework remains in force pending any further legal or legislative action, restoring the status quo that existed before the High Court decision.
The judgment is a significant development in the long-running legal contest over NG-CDF, which has repeatedly come under constitutional scrutiny over concerns relating to separation of powers, public finance management and the role of Members of Parliament in fund administration.
Parties to the case retain the option of seeking further clarification from the Supreme Court, should they wish to challenge the Court of Appeal’s findings.
