CDF debate rages as public participation phase closes

Public participation on the Constitutional (Amendment) Bill, 2025 came to a close on Thursday, even as questions over the legitimacy of the process characterised the undertaking.

The four-day exercise, which began on May 4 and ended on May 7, saw Members of Parliament lead delegations countrywide in giving views on whether the National Government Constituency Development Fund (NG-CDF), National Government Affirmative Action Fund (NGAAF) and the Senate Oversight Fund should be entrenched in the constitution.

The legality of the process has, however, been put to question by a section of the political analysts and legal experts who argue that the MPs erred in trying to legitimise a fund already declared unconstitutional by the courts.

Orange Democratic Movement Party leader Raila Odinga was the first to take a swipe at the National Assembly over its umpteenth attempt to save the NG-CDF fund by entrenching it in law.

Raila accused the MPs of orchestrating an illegal takeover of County functions, further emphasising the need for the national government to stop stifling devolution. “There’s a gazette notice that they want to amend the Constitution to legalise this CDF. What does National Government have to do with counties? In counties, we’ve got executive powers to implement,” said Raila.

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Five other lobby groups, including the Katiba Institute, also moved to Court seeking to stop the Controller of Budget from approving any funds towards the public participation exercise proposing constitutional amendments.

“There is therefore, a real risk that scarce public resources are being channeled towards an otherwise legitimate Constitutional process that, on scrutiny, is not only constitutionally superfluous but also runs afoul of established constitutional principles,” read the petition in part. They further sought for conservatory orders for President William Ruto not to assent to the Bill.

Legal experts also criticisied the MPs for “mutilating” the Constitution rather than adhering to their oversight and legislation mandates.

Constitutional Lawyer Willis Otieno was of the view that for a monumental undertaking such as the amendment of the supreme law of the land to happen, a referendum should have been undertaken first to allow the public to understand the CDF vis-a-vis devolution.

His counterpart, Evans Ogada noted that by the import of the ruling by the High Court on the Fund, it was illegal and efforts by the legislators to legitimise it were ill-informed. Ogada also noted that the MPs’ stewardship of the public participation exercise violated the doctrine of separation of powers between the Executive and the Legislature.

On the flipside, a section of Kenyans called for NG-CDF, NGAAF and Senate oversight fund to be anchored in the Constitution, citing their life-changing impact on grassroots communities.

Lurambi MP Bishop Titus Khamala echoed the call to constitutionalise the funds, noting that the NGCDF had played a vital role in improving education infrastructure and bursary access in his constituency. “Without NGCDF, many students would be out of school due to lack of fees. We’ve built classrooms, supported ICT hubs, and even constructed footbridges to help children access schools safely,” he said.