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Constitutional Tug of War Over Development Funds

By Tobias Mutunga

The Common Pulse | August 2025


Kenya’s Parliament has once again stirred heated debate after passing the Constitution of Kenya (Amendment) Bill, 2025, a proposal that seeks to entrench the National Government Constituencies Development Fund (NG-CDF), the National Government Affirmative Action Fund (NGAAF), and introduce a brand-new Senate Oversight Fund (SOF).

While the move has been celebrated by MPs as a way of securing resources for grassroots development and oversight, it has sparked outrage among constitutional experts, civil society, and devolution advocates.

What the Amendment Proposes

  • NG-CDF: Channeling funds directly to constituencies, often controlled by Members of Parliament.

  • NGAAF: A similar fund designed to support initiatives led by women representatives.

  • SOF: A new fund intended to empower Senators in their oversight role at the county level.

If adopted, these funds would be formally anchored in the Constitution, effectively shielding them from future legal challenges.

Why the Controversy?

Kenya’s courts have, in the past, declared CDF unconstitutional, citing that it blurs the lines between the legislative and executive arms of government. Lawmakers are meant to legislate and provide oversight, not to directly manage development projects.

Critics argue that anchoring these funds into the Constitution:

  • Violates separation of powers by allowing legislators to act as both lawmakers and implementers.

  • Undermines devolution, since counties were created to take charge of local development.

  • Ignores court rulings, effectively overturning judicial decisions without addressing the underlying constitutional concerns.

Civil society groups warn that this sets a dangerous precedent where political convenience trumps constitutionalism.

What’s at Stake

The bill now heads to the Senate, where its fate is far from certain. Senators may welcome the SOF, which would give them more resources, but they also face pressure to defend devolution, which risks being weakened by parallel funding structures.

The debate has also reignited a broader national conversation: Should development funds be centralized through MPs, or should they flow directly to counties?

Bigger Political Picture

The push for entrenching these funds is widely seen as politically motivated, given MPs’ strong attachment to the CDF as a tool for visibility and influence in their constituencies. With elections looming in 2027, many see this as a way for lawmakers to safeguard their political capital.

On the other hand, governors and devolution champions insist that counties should remain the sole custodians of local development, warning that multiple funds risk duplication, mismanagement, and corruption.

Kenya now faces a critical constitutional test: Will the Senate uphold the spirit of devolution and judicial independence, or will political expediency win the day? The outcome of this tug-of-war will shape not just the flow of development funds, but also the future balance of power between Parliament, the Judiciary, and devolved governments.


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