Civil society groups’ bid to halt NG-CDF Bill fails

However, Justice Lawrence Mugambi turned down the request noting there was no need for interim orders since Parliament’s advocates had registered their presence in court and were ready for hearing.

He, instead, directed Parliament to respond to the application within a week. He also said Katiba Institute was free to renew the bid for the order.

“The court finds no need to issue interim conservatory orders as the parties are already in court but the petitioners can still revive the issue of interim orders on June 5 when the court will give directions on fixing a ruling date,” said the judge.

Through lawyers Kelvin Walumbe and Henry Paul Gichana, Katiba Institute told the court that the interim order was necessary because “Parliament may operate in a record speed” in passing the Bill and forward it to the President. They said this would defeat the purpose of the court case.

The gist of their case is that the proposed constitutional changes require a public referendum and currently Kenya lacks a law governing the conduct of a referendum.

They said the first reading of the Bill happened on March 12 in the National Assembly, meaning the third reading could happen any time after June 12. The proposed changes through the Constitution of Kenya (Amendment) Bill 2025 aim to entrench the NG-CDF, National Government Affirmative Action Fund and the Senate Oversight Fund into the Supreme Law.

This will provide the funds with legal legitimacy following past concerns that their creation was encroaching upon functions belonging to county governments.

However, the Attorney General and Parliament through lawyers Jackline Kiramana and Mitchell Amuom said the fear expressed by the civil society was unfounded since the Bill was far from being passed into law.

Read:  NG-CDF row calls for scrutiny of lawmakers

“The timelines for tabling Bills and reading in Parliament are set out in the Constitution. There is no danger or inherent danger the Bill is still under public participation. The petitioners want the court to breach the principle of separation of powers. They want the court to cut the knees of a party even before the race begins,” argued Ms Omuom. She stated that there was “no chance the Bill would be signed to law even in the next 100 days”.

“By that time the court will have dealt with the petition. Grant us the opportunity to file our responses and no order should be issued,” she pleaded.

According to the civil society groups, the Bill co-sponsored by MPs Samuel Chepkonga (Ainabkoi -UDA) and Otiende Amollo (Rarienda -ODM) is constitutionally superfluous and the funds it seeks to create are inconsistent with the Constitution.

“The sole objective behind the Bill is to add three Funds to the current Constitution. The Bill and any associated processes, including the scheduled public participation, are unnecessary and violate the Constitutional requirement for prudence and responsibility in public spending,” says their lawyer Malidzo Nyawa in the court papers.

“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, before embarking on any constitutional amendment process”.

He explains that creation of SOF to facilitate the Senate’s oversight roles would touch on functions of the Parliament as contained in Article 255(1)(h) & (i) of the Constitution and the structure of devolved government. Hence, the Bill would need to be subjected to a referendum for approval.

In their attack on the proposed amendment, the petitioners argue that Parliament, by initiating an amendment to the constitution before passing the required legislation on referendum, jumped the gun.

They contend that Parliament overlooked the constitutional requirement to enact legislation governing the constitutional amendment process.

“The legislation on referendum is so central to the Constitutional amendment process because it will govern how a referendum is conducted if the proposed amendments fall under Article 255(1). Courts have repeatedly called upon parliament to enact legislation on amendment of the constitution so that roles of different players can be outlined,” says lawyer Nyawa.

He adds that NGAAF is currently being implemented through the Public Finance Management Act (National Government Affirmative Action Fund) Regulations, 2016.

“Various court decisions, including that of the Supreme Court, have emphasized that the proposed NGCDF can be lawfully implemented within the confines of the current Constitution. The idea behind the proposed SOF is presently implemented through the budgetary provisions relating to Parliament under the Constitution,” he says.

The petitioners want the court to certify the petition as raising novel and substantial issues of law and be forwarded to the Chief Justice to appoint an expanded bench.

They have listed at least six questions that they believe need to be determined by an expanded bench, the first being whether the Constitution can be amended to introduce clauses that conflict with existing constitutional provisions and principles.

The second is whether constitutional amendments can be initiated to provide for issues that the Constitution sufficiently considers and makes provision for.

Third is whether Parliament bears a positive obligation to sieve proposed constitutional amendments and make a determination on whether the issues sought to be addressed through the proposed amendments are capable of being adequately addressed within the confines of the existing legal provisions.

According to Mr Nyawa, the move is to preserve the sanctity of the Constitution and ensure the prudent and responsible use of public resources.

Fourth is whether a constitutional amendment can be initiated, considered and passed without a referendum law to govern the process.

The fifth question is whether the memorandum accompanying a constitutional amendment bill should declare whether the bill touches on the entrenched provisions, hence should be subjected to a referendum.

The last is whether the referendum law should provide for a mechanism for contesting the classification of an amendment Bill as either relating to or not relating to the entrenched provisions. The case will be mentioned on June 5, 2025.

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