Kenya’s High Court Declares NG-CDF Unconstitutional, Extends Projects Until 2026

By THE DISPATCH DIGIAL REPORTER

Nairobi, Kenya — The National Government Constituency Development Fund (NG-CDF), a key vehicle for distributing development funds across Kenya’s 290 constituencies, has been declared unconstitutional by the High Court. However, in a contentious ruling late this evening, two of the three presiding judges have allowed the fund’s operations to continue until June 2026, raising questions about the implementation of an unconstitutional law for nearly two more years.

The court’s decision, which stems from a challenge based on the separation of powers, found the NG-CDF in violation of Kenya’s 2010 Constitution, which clearly delineates the roles of the executive, legislature, and judiciary. The NG-CDF Act allows Members of Parliament to oversee public funds for local development projects, an overreach into executive functions, according to the court’s ruling.

Lady Justice Mugure Thande, one of the three judges on the panel, issued a separate opinion, arguing that the NG-CDF should cease operating by June 2025. She emphasised that the unconstitutional status of the fund necessitates its swift termination. The majority ruling, however, extended the life of ongoing projects until June 2026, citing the need for continuity in funds already allocated.

The court acknowledged the practical difficulties of abruptly halting ongoing projects, which include infrastructure, education, and healthcare initiatives in remote constituencies. “The principle of equity demands that the existing projects be concluded in an orderly manner,” the ruling stated, while also signalling that no new projects should be initiated after 2025.

Constitutional Tension and Political Fallout

The High Court’s decision revives longstanding debates about the NG-CDF, originally established in 2003 and repeatedly amended to address governance and legal concerns. In 2015, the Constituency Development Fund (CDF) was similarly declared unconstitutional, prompting the creation of the NG-CDF. Today’s ruling reaffirms previous legal critiques, focusing on the fund’s incompatibility with Kenya’s constitutional framework.

The decision has ignited debate about whether the two-year extension is a prudent move to wind down operations or an unacceptable compromise that perpetuates unconstitutional practices. Some legal experts have expressed concern that allowing the fund to operate until 2026 undermines the rule of law. Critics are urging vigilance to ensure no new allocations are made and no further projects are started under the NG-CDF.

“An unconstitutional law being extended for two years undermines the very principles of governance that the 2010 Constitution sought to enshrine,” commented a legal analyst. “This ruling sets a dangerous precedent.”

Broader Implications

The ruling is likely to have far-reaching implications for Kenya’s governance structures. The fund, which channels billions of shillings to local constituencies, has been praised for bringing development closer to communities but has faced criticism for inefficiency, corruption, and political patronage. With the NG-CDF’s future now uncertain, Kenya’s government will need to explore alternative mechanisms for funding local development in line with constitutional principles.

Many expect the ruling to lead to a political showdown as MPs, many of whom rely on the NG-CDF to demonstrate development credentials to their constituents, may push for a legislative overhaul. “What we need is a fresh set of MPs who have not benefited from these unconstitutional funds,” said one opposition politician.

As the debate continues, the public and civil society groups are calling for transparency and accountability in the use of public funds and for the judiciary to enforce strict constitutional adherence.

For now, the NG-CDF will continue to operate, but its days appear numbered, with a final shutdown date in sight.

Key Takeaways:

• The NG-CDF has been declared unconstitutional, with its projects allowed to continue until June 30, 2026.
• Lady Justice Mugure Thande dissented, advocating for a cessation by June 2025.
• The ruling has sparked a broader conversation about governance, corruption, and the separation of powers in Kenya.