In its petition, the Katiba Institute is contesting Parliament’s attempt to constitutionalize the NG-CDF, along with the Senate Oversight Fund (SOF) and the National Government Affirmative Action Fund (NGAAF).
The institute argues that the Bill is constitutionally unnecessary, asserting that the proposed funds are inconsistent with the principles and framework of the 2010 Constitution.
“The Bill and all associated processes, including the planned public participation, are unnecessary and violate the constitutional requirement for prudence and responsibility in public spending,” Katiba argued.
They further claimed that any attempt to amend the Constitution in this manner should first be preceded by the enactment of a referendum law something Parliament has failed to implement for the past 14 years.
“Without a referendum law in place, any attempt to amend the Constitution to entrench these funds is procedurally flawed,” the Institute stated.
Katiba also noted that the Public Finance Management (National Government Affirmative Action Fund) Regulations, 2016 already provide a legal basis for implementing NGAAF.
Additionally, Article 206(1)(a) of the Constitution allows for the creation of special-purpose funds without a constitutional amendment.
They argued that previous Supreme Court and High Court rulings have made it clear that NG-CDF can be implemented legally within the confines of the current Constitution, without needing to embed it through constitutional change.
The amendment Bill, sponsored by Rarieda MP Otiende Amollo and Ainabkoi MP Samuel Chepkonga, had already been approved by the National Assembly at the Third Reading stage.
However, it was still pending debate and approval in the Senate.
With the High Court’s orders now in effect, further progression of the Bill is effectively on hold until the constitutional challenge is fully adjudicated.
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