NAIROBI, Kenya — The proposed National Infrastructure Fund (NIF) Bill, 2026, is facing mounting constitutional scrutiny, with public interest litigators warning that several provisions may conflict with Kenya’s devolution framework and public finance safeguards.
The Katiba Institute (KI) on Thursday made submissions before the National Assembly’s Finance and National Planning Committee, urging lawmakers to amend clauses that could expose the legislation to constitutional challenge.
Representing the Institute, Henry Gichana and Beth Odek acknowledged the Bill’s objective of formalising infrastructure financing through an Act of Parliament.
“The Bill is a commendable step in ensuring that public funds are established under the authority of an Act of Parliament as required under Article 206(1)(a) of the Constitution,” Gichana said.
“However, the Bill raises constitutional and rule of law concerns in the manner in which it is set to be enacted, in its substance and in the manner it is intended to be managed,” he added.
Devolution and Senate’s role questioned
KI warned that the proposed Fund’s scope extends into infrastructure functions constitutionally assigned to county governments under the Fourth Schedule of the Constitution.
“The scope of infrastructure projects intended for implementation under the Act extends into functions constitutionally reserved for county governments,” the Institute told MPs.
The experts further noted that although the Bill may directly affect county finances, it is currently classified as not concerning county governments — a designation that could sideline the Senate’s constitutional role under Articles 110 and 114.
They urged Parliament to either formally classify the Bill as one concerning county governments and seek Senate concurrence, or narrow its scope to remove borrowing and government-backed mechanisms that could affect devolved units.
Public debt and fiscal risk
The Bill’s stated aim to reduce reliance on public debt for commercially viable infrastructure investments also drew scrutiny.
Gichana said that while the objective is sound, any mechanism touching on borrowing has implications for revenue sharing under Article 202.
“All matters relating to public debt directly affect the revenue available for sharing between national and county governments,” he explained.
KI cautioned that without strict oversight, the Fund could operate outside standard budgetary controls and significantly alter Kenya’s fiscal risk profile.
“Without stringent controls, the Fund could significantly alter Kenya’s fiscal risk profile outside the standard national budget and expenditure processes,” the Institute warned.
Oversight and accountability safeguards
The constitutional watchdog further argued that the Bill lacks adequate parliamentary supervision mechanisms. It said the current framework does not sufficiently embed pre-authorisation and oversight safeguards consistent with Kenya’s constitutional architecture on revenue, borrowing, and expenditure.
“In addition to this, there is a general concern that not enough measures have been included in the Bill to guarantee closer parliamentary oversight or expenditure control through institutions such as the Controller of Budget,” KI submitted.
Kituo Cha Sheria also presented proposals to the committee, calling for the Fund to be fully anchored in the Public Finance Management Act framework.
The organisation recommended amending Clause 5(c) to require Parliament’s prior approval for all borrowing, revising Clause 12 to subject investments to the Public Procurement and Asset Disposal Act, and mandating approval from the Office of the Controller of Budget for all withdrawals. It further called for regular audits by the Office of the Auditor-General.
“This will help to uphold constitutional safeguards under Articles 228 and 229 and prevent off-budget expenditure,” the group said.
High-stakes fiscal reform
If enacted in its current form, the NIF could manage hundreds of billions of shillings in infrastructure financing. The debate now centres on whether Parliament will recalibrate the Bill to align it fully with constitutional principles of devolution, fiscal transparency, and legislative oversight.
The committee is expected to consider stakeholder submissions before tabling its report in the House.
