NAIROBI, Kenya – The Court of Appeal has reinstated the National Government Constituencies Development Fund (NGCDF) Act, 2015, overturning a High Court decision that had declared the law unconstitutional in its entirety.
In a judgment delivered on Friday morning, a three-judge bench led by Court of Appeal President Justice Daniel K. Musinga, alongside Justice Francis Tuiyott and Justice A. O. Muchelule, set aside the High Court ruling issued on September 20, 2024.
The appellate judges found that the High Court erred by invalidating the entire Act without conducting a sufficiently grounded constitutional analysis, particularly on the complex issues of public finance, devolution, and separation of powers.
High Court Applied Wrong Constitutional Test
The Court of Appeal held that the trial court failed to properly interrogate the text and structure of the Constitution before striking down the legislation.
According to the judges, the High Court did not clearly demonstrate how the NGCDF Act violated constitutional provisions or principles.
The appellate court further ruled that the legal challenge before the High Court was not rendered moot by the 2022 and 2023 amendments to the Act, rejecting arguments that the changes cured or superseded the issues raised in the petition.
No Violation of Devolution or Division of Functions
In a key finding, the Court of Appeal ruled that the NGCDF Act does not undermine devolution nor does it blur the constitutional division of functions between the national and county governments.
The judges disagreed with the High Court’s conclusion that the Fund interferes with county functions, holding that NGCDF spending remains part of national government expenditure as approved annually by Parliament through the Appropriations Act.
Only One Section Found Unconstitutional
While largely upholding the Act, the Court of Appeal found Section 43(9) unconstitutional.
The provision tied the tenure of a constituency fund manager to the life of Parliament and election transition periods.
The court ruled that this arrangement violated the doctrine of separation of powers and severed the section from the Act, allowing the rest of the law to remain in force.
Public Finance Concerns Rejected
The appellate judges also rejected claims that the NGCDF Act offends the principles of public finance, cautioning courts against invalidating legislation based on speculative or hypothetical harm.
They noted that the Act establishes multiple layers of accountability, including mandatory audits by the Auditor-General, internal accounting requirements, and parliamentary oversight.
Courts Not Arbiters of Policy
In a strong rebuke of the High Court’s approach, the judges cited the U.S. Supreme Court decision in U.S. v. Butler (1936), emphasizing that courts are not tasked with approving or condemning legislative policy.
“Judicial review,” the court stressed, “is limited to determining whether legislation conforms to constitutional requirements.”
The ruling restores the legal foundation of the NGCDF, a fund that has long been the subject of constitutional debate, while narrowing the scope of judicial intervention in legislative design.
