Paul Mwangi, the seasoned constitutional lawyer representing opposition leader Raila Odinga, has moved to the High Court to challenge a proposed constitutional amendment.
The contentious Constitution of Kenya (Amendment) Bill, 2025, seeks to entrench three significant public funds: the National Government Constituency Development Fund (NG-CDF), the Senate Oversight Fund (SOF), and the National Government Affirmative Action Fund (NGAAF) into the nation’s supreme law.
Mwangi’s petition, filed shortly after Parliament passed the Bill in June, demands a judicial determination on whether a national referendum is constitutionally mandated before the Bill can be enacted.
The core of Mwangi’s argument rests on Article 255(1) of the Constitution, which outlines specific provisions requiring a national referendum for amendment. He states s that the Bill’s proposed changes touch upon fundamental aspects of Kenya’s governance structure, including the structure of devolved government, the independence of the judiciary, and the key principle of separation of powers.
“Matters such as the structure of devolved government, the independence of the judiciary, and the separation of powers cannot be altered by parliamentary vote alone,” Mwangi stated, emphasizing the gravity of the proposed amendments.
Furthermore, Mwangi cites Article 256(5), which stipulates that any constitutional amendment relating to matters listed in Article 255(1) must be submitted to the people in a referendum after parliamentary approval. Bypassing this process, he argues, would render the entire amendment unconstitutional.
The legal challenge adds to increasing pressure on the Bill, following an earlier petition by the Katiba Institute and several civil society organizations in May, who argued the Bill is “constitutionally superfluous” and inconsistent with the spirit of the Constitution. The Katiba Institute contended that “The Bill and any associated processes, including the scheduled public participation, are unnecessary and violate the Constitutional requirement for prudence and responsibility in public spending”.
The Bill, co-sponsored by Rarieda MP Otiende Amollo and Ainabkoi MP Samuel Chepkonga, aims to provide a stronger legal foundation and safeguard the existence of these funds from future court challenges. Proponents argue that entrenching the funds will offer legal certainty and constitutional protection, especially given past court rulings that have questioned the legality of the NG-CDF.
The NG-CDF is designed to enhance equitable access to national government services, particularly in education and infrastructure at the grassroots level. The SOF seeks to strengthen the Senate’s oversight role over county governments, while the NGAAF aims to enhance support for vulnerable groups, including women, youth, and persons living with disabilities.
However, critics, including Raila Odinga himself, have long argued that funds like the NG-CDF undermine devolution by encroaching on functions constitutionally assigned to county governments. Odinga has previously called for the complete abolition of CDF, urging Members of Parliament to focus on their legislative and oversight roles.
