Court halts push to entrench CDF, cites absence of referendum law

The High Court’s decision to stop Parliament from forwarding the Constitution of Kenya (Amendment) Bill, 2025, to President William Ruto for assent has thrust into the spotlight a long-ignored gap in Kenya’s constitutional architecture, the absence of a referendum law.

Katiba Institute, which filed the petition, told the court that MPs have rushed into amending the Constitution without first enacting legislation to govern referendums, a misstep it says has muddied the process and undermined public confidence in constitutional change.

“All organs of State, including Parliament and the President, must remain within the constitutional confines when interpreting and/or implementing the Constitution,” Katiba states in its petition.

When the President, on December 9, 2022, requested Parliament to embark on constitutional amendments to establish the office of the leader of opposition and to entrench CDF, the Senate Oversight Fund (SOF), and the National Government Affirmative Action Fund (NGAAF) into the Constitution, he ignited a process that Katiba Institute and other petitioners say was fatally flawed from the start.

“The President knew, or ought to have known, that there was no legislation governing the process,” Katiba Institute told the court.

The lobby insisted that the “first port of call was to request Parliament to first enact legislation governing constitutional amendment before diving into the process of amending the Constitution.”

Justice Lawrence Mugambi of the Milimani High Court yesterday issued conservatory orders barring Parliament from transmitting the Bill to State House for assent to law, pending the hearing of the petition filed by Katiba Institute and others. 

“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 2025 to the President for assent, and if assented to, the same shall not take effect until the instant petition is heard and determined,” Justice Mugambi ordered.

The judge also referred the matter to Chief Justice Martha Koome to appoint a larger bench, saying the case raises serious and weighty constitutional questions that cannot be decided by a single judge.

“This file is hereby forwarded to the Chief Justice for empanelment of an uneven number of judges to hear and determine the petition pursuant to provisions of Article 165 of the Constitution,” he directed.

The petitions, now five in total, have all been referred to the CJ to compose a bench.

Some petitioners, including lawyer Lempaa Suyianka and UK-based activist Eliud Matindi, suggested that the bench include up to 17 judges. 

But Justice Mugambi left that decision to the Chief Justice, noting: “All that is for the CJ.”

At the heart of the petitioners’ case is the contention that the Bill touches on “entrenched provisions” under Article 255(1)(h) and (i) of the Constitution, the functions of Parliament and the structure of devolved government.

Such provisions, they argue, cannot be altered without a referendum. But Kenya has no law to guide how a referendum would be conducted.

Parliament has failed to pass one despite repeated calls, leaving courts, petitioners and political actors in limbo each time constitutional change looms.

The petitioners, led by Katiba Institute, through lawyer Joshua Malidzo, argue that this legal vacuum has created uncertainty over whether proposals like entrenching the National Government Constituency Development Fund (NG-CDF), the National Government Affirmative Action Fund (NGAAF) and the Senate Oversight Fund (SOF) can proceed at all.

“This omission has created confusion on whether proposed constitutional changes, such as the entrenchment of NG-CDF and other funds, would require a referendum, thereby undermining the integrity of the entire amendment process,” lawyer Malidzo told the court. 

With no legislation currently defining how referenda should be conducted, the petitioners say the process is fatally flawed.

Parliament, through the National Assembly and Senate, had urged the court to throw out the case, arguing it was premature since the Bill had not yet been enacted, and that the Judiciary had no role in scrutinising parliamentary processes.

They warned that judicial intervention would amount to meddling in legislative processes.

But Justice Mugambi disagreed with the National Assembly and Senate lawyers’ argument that the High Court lacks jurisdiction to hear the lawsuit challenging MPs’ bid to amend the Constitution through Parliament.  

“This court has jurisdiction to determine the lawsuit if the process used in amending the constitution by the lawmakers meets the legal requirements,” he ruled.

He rejected claims of judicial overreach, insisting that separation of powers “does not shield Parliament from judicial scrutiny where it is alleged that constitutional procedures have been flouted.”

On the question of ripeness, the judge warned that waiting until a Bill becomes law could make constitutional violations irreversible.

 “Where constitutional principles are implicated, this court must intervene early to prevent an illegality from crystallising into law,” he said.

The Bill seeks to entrench NG-CDF, NGAAF, and SOF in the Constitution. MPs argued that it is the only way to shield them from repeated legal challenges.

The CDF in particular has had a tumultuous history in court. In 2015, the High Court declared it unconstitutional, a decision later upheld by the Supreme Court in 2022. 

Yet MPs have resisted, insisting on keeping direct control over billions in development funds.

The five petitions have now been referred to Chief Justice Koome, who must decide the size of the bench.

Some petitioners, including lawyer Lempaa Soyinka and UK-based activist Eliud Matindi, suggested a 17-judge bench to hear and determine the weighty issues raised in the petitions.

But Justice Mugambi brushed aside the requests.

“All that is for the CJ,” he remarked, making clear the discretion lies entirely with the head of the judiciary.

After the court ruling, Lawyer Malidzo noted that the decision has far-reaching implications beyond the fate of CDF.

“Parliament must first pass a referendum law, the case before the court now reopens a debate that has haunted Kenyan politics since the Building Bridges Initiative (BBI) was struck down in 2021,” Lawyer Malidzo stated.