The High Court has stopped Parliament from forwarding the Constitution of Kenya (Amendment) Bill, 2025, which seeks to entrench three key funds into the constitution, to President Ruto for assent.
High Court judge Lawrence Mugambi said public interest lies in stopping the process, because once the Bill - which is pending approval before the Senate - is assented into law, the process cannot be reversed unless through another amendment.
The Bill, which was co-sponsored by Rarieda MP Otiende Amollo and Ainabkoi MP Samuel Chepkonga, seeks to anchor the National Government Constituencies Fund (NG-CDF), Senate Oversight Fund (SOF) and National Government Affirmative Action Fund (NG-AAF), into the constitution.
“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, from being referred to the President for assent and if I assented to, the same shall not take effect until the petition is heard and determined,” said the judge.
MPs unanimously passed the Bill during the Second Reading of the Bill, with 304 voting in favour and 298 Members of Parliament supporting the Bill during the Third Reading, both times achieving the mandatory two-thirds of all MPs.
Several lobby groups challenged the Bill, arguing that Parliament had embarked on the process of amending the constitution without enacting a referendum law to guide the process.
The petitioners further said that the Bill is a sham since the NG-CDF was previously declared unconstitutional by the High Court, Court of Appeal and the Supreme Court.
Last year, a bench of three judges of the High Court declared the NGCDF Act unconstitutional for violating the principle of separation of powers.
The court had said the NGCDF and all its projects, programs and activities shall cease to operate on the stroke of midnight on June 30, 2026.
Parliament and the Attorney General had filed a preliminary objection arguing that the petitioners should have presented memoranda before the two houses before moving to court.
The Attorney General further submitted that the court had no jurisdiction to determine the cases because of the doctrine of separation of powers.
Justice Mugambi, however, ruled that the issues raised in the petitions were ‘not idle’ and the High Court has the mandate of ensuring that every arm of the government performs its functions in accordance with the constitution.
“The court has jurisdiction to determine the dispute for it is the responsibility of the court to consider if the process meets the constitutional threshold,” said the judge.
The petitioners who challenged the Bill include Katiba Institute, The Institute for Social Accountability, Centre for Enhancing Democracy & Good Governance, Transparency International, lawyer Suiyanka Lempaa and the Kenya Human Rights Commission.
The petitioners argue that Parliament rushed the process and consequently infringed on the rights of the people and undermined public trust and democratic governance.
They argue that Parliament jumped the gun by initiating an amendment to the constitution before passing the required legislation on how to conduct a referendum.
“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,” Katiba Institute said.
It is their argument that the legislation on referenda 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).
He adds that NGAAF is currently being implemented through the Public Finance Management (National Government Affirmative Action Fund) Regulations, 2016.
“Various court decisions, including that of the Supreme Court, have emphasized that the proposed NG-CDF 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,” the petition by Katiba says.
The judge said that although the parliamentary process was ongoing, the petitioners had identified some of the risks that it portends.
Justice Mugambi added that the court had to intervene as there was an imminent danger of the constitution being mutilated.
“The fact that the process lacks clarity on whether or not it will require a referendum to guide the process, in my view is a clear proof that these are fundamental constitutional positions that show that the petition presents a prima facie and of a valuable constitutional case,” said the judge.
Justice Mugambi added that the case raised substantial questions of law that should be addressed by a bench of more than one judge.
The judge directed that the files be forwarded to Chief Justice Martha Koome for the appointment of an uneven number of judges to determine the cases.
