A charged public mood may see the Senate handle the Constitution of Kenya (Amendment) Bill 2025 with caution.
The Constitution of Kenya (Amendment) Bill, sponsored by MPs Otiende Amollo (Rarieda) and Samuel Chepkong’a (Ainabkoi), seeks to anchor into the Constitution three funds— National Government-Constituency Fund (NG-CF), the Senate Oversight Fund and the National Government Affirmative Action Fund. The Senate has indicated that it might shoot down the Bill.
This comes as the National Assembly’s Committee on Delegated Legislation gave the clearest sign of rejecting the punitive code of conduct for media practice after pointing out glaring loopholes that make its implementation impossible.
And fearing a backlash, National Assembly Leader of Minority Junet Mohamed has said that the Orange Democratic Movement (ODM), which Ms Passaris is part of, does not back the Bill.
Nairobi County Woman Representative Esther Passaris.
Photo credit: Bonface Bogita | Nation Media Group
“ODM has nothing to do with the Bill. It is a private members Bill. It belongs to an individual member, not us,” he said.
The Constitution of Kenya (Amendment) Bill 2025 sailed through in the National Assembly on Tuesday after 298 MPs of the 349-member House voted to approve it.
The law states that a constitutional amendment Bill must be supported by at least two-thirds majority, which is 233 of the 349 Members of Parliament.
Former Speaker of the National Assembly Justin Muturi has asked the Senate to reject the Constitution of Kenya (Amendment) Bill 2025.
“If the Senate values constitutional order, leadership integrity, and devolution, it must reject this proposal or, at the very least, insist that it be subjected to a referendum,” said the Immediate former Public Service Cabinet Secretary.
The Supreme Court declared the NG-CDF Act unconstitutional on August 8, 2022, citing violations of the separation of powers and public finance principles. So, Mr Muturi said that it defeats the purpose for the National Assembly to pass the Bill. The House went on recess until July 22.
Former CS Justin Muturi.
Photo credit: . Lucy Wanjiru | Nation Media Group
“The legislators cannot simultaneously make law, implement projects, and then audit themselves,” Mr Muturi, who is a former Attorney-General, said.
The Constituencies Development Fund (CDF) started in 2003 following a motion by former Ol Kalou MP Muriuki Karue that transformed into the CDF Bill that was enacted into law on December 30, 2003. Its implementation started on April 15, 2004.
The fund was created to address development disparities to take resources closer to the constituency level, with 2.5 per cent of the government's ordinary revenue allocated to it.
The promulgation of the 2010 Constitution that devolved resources to the 47 counties, saw the constitutionality of the fund challenged in court. In 2015, the CDF was declared unconstitutional. However, the National Assembly, in a desperate attempt to save it, enacted the National Government-Constituency Development Fund Act.
The law established the CDF committees appointed by lawmakers, whose role in the management of the fund, they claimed, was reduced to periphery.
Still, this did not cure the unconstitutionality of the fund. Subsequently, in 2022 the High Court declared the fund unconstitutional, a judgement that was upheld by the Supreme Court early this year.
The Supreme Court went on to give the government until June 30, 2026 to wind up the fund.
The Supreme Court, in its judgment, held that NG-CDF’s architecture breached the separation of powers by inserting MPs into Executive turf.
Senators Edwin Sifuna (Nairobi), Samson Cherargei (Nandi), Ledama ole Kina and Godfrey Osotsi (Vihiga) faulted the National Assembly for not involving the Senate in the formulation of the Bill.
“No one asked for the Senate Oversight Fund so it is not a priority for us,” Mr Sifuna said. “My party ODM has already taken a position on this matter.”
Nairobi Senator Edwin Sifuna at Bunge Tower Nairobi on March 17, 2025.
Photo credit: Dennis Onsongo | Nation Media Group
“The position is that the legislators should not involve themselves in any Executive functions and should stick to legislation, oversight and representation,” the senator added.
ODM leader Raila Odinga has consistently said that the NG-CDF violates the constitutional doctrine of separation of powers between the Executive and the Legislature. He said that MPs should never be involved in the management of the fund.
The members of the National Assembly have, however, maintained that their role in the use of the fund is peripheral.
City lawyers David Ochami and Nzau Musau warned that however much the CDF law changes names, it will not cure the fact that it violates the constitutional doctrine of separation of powers between the Executive and the Legislature.
“Any purported law to reintroduce NG-CDF must involve the Senate. But ultimately no amount of legislative gymnastics can clothe NG-CDF with constitutional legitimacy,” said Mr Ochami.
According to Mr Musau, NG-CDF is a form of corruption of the political structure to perpetuate old ways of doing things.
“The things they are trying to do with the NG-CDF and the other two funds will not pass the test of constitutionality,” said Mr Musau.
On the proposed amendment to zone areas of demonstrations by Ms Passaris, Mr Muturi said: “It is a knee-jerk reaction from a government that is out of touch with reality. Picketing is a right granted by the Constitution of Kenya.”
Mr Sifuna, also the ODM secretary-general, warned that “our party will not support any law that curtails the rights granted in the constitution”.
“As a party, we believe in the right to peaceful protest. Any law that seeks to fetter that right in anyway is manifestly anti-ODM,” Senator Sifuna told Sunday Nation.
