Katiba Institute Sues Parliament Over Plans to Change Constitution
On Friday, May 2, the Katiba Institute, alongside several civil society groups, filed a case at the High Court challenging a proposed constitutional amendment.
The petition targets the Constitution of Kenya (Amendment) Bill, 2025, which aims to introduce three controversial funds: the National Government Constituency Development Fund (NG-CDF), the Senate Oversight Fund (SOF), and the National Government Affirmative Action Fund (NGAAF).
In a statement to the public, Katiba Institute confirmed that it had officially filed the petition, raising serious concerns about the legality and necessity of the Bill.
According to the petitioners, the Bill is not only redundant but also goes against the principles and values set out in the Constitution of Kenya.
“The Bill, along with the processes connected to it—including the public participation scheduled for May 5 to May 7—is unconstitutional and unnecessary. It also violates key constitutional principles on prudent and responsible use of public funds,” Katiba argued in their petition.
The Institute also maintained that parts of the Bill would require a national referendum to be valid. However, Parliament has not yet enacted a law to govern how a referendum should be conducted—a requirement they have ignored for the past 14 years.
Katiba therefore urged the court to compel Parliament to first pass a referendum law before making any further attempts to change the Constitution.
The civil society organisations also argued that the changes being pushed by Rarieda MP Otiende Amollo and Ainabkoi MP Samuel Chepkonga are not necessary, as the Constitution already provides lawful ways to implement such funds.
For instance, they pointed out that the NGAAF is already operational through the Public Finance Management (National Government Affirmative Action Fund) Regulations, 2016.
These regulations are supported by Article 206(1)(a) of the Constitution, which allows for the establishment of special-purpose funds.
Additionally, Katiba noted that several rulings by courts, including the Supreme Court, have affirmed that the NG-CDF can be lawfully implemented under the current constitutional framework.
Likewise, the SOF is already managed through Parliament’s existing budget allocations, which are allowed under the Constitution.
The petitioners further warned that introducing these new funds through a constitutional amendment could create confusion and potential conflicts between county and national government roles.
They believe the amendments would overlap with existing functions and cause duplication, going against the principles of efficient governance outlined in the Constitution.
Katiba Institute is now seeking the court’s intervention at two critical stages—before and after the hearing of the petition. Before the matter is heard in court, they want five key actions taken:
- Suspension of the public participation process planned for May 5 to 7, 2025.
- An order stopping the Controller of Budget from releasing or approving any money related to this public engagement.
- A court order barring Parliament from forwarding the Bill to the President if it passes in Parliament.
- A court order stopping the President from assenting to the Bill if it reaches his desk.
- A directive to the Chief Justice to appoint a bench of at least three judges to hear and decide on the case.
After the petition is heard, Katiba wants the court to declare the entire Bill unconstitutional and, therefore, invalid.
In summary, the lawsuit by Katiba Institute and allied civil society groups represents a firm stand against what they see as an unnecessary and unlawful attempt to change the Constitution.
They argue that the current legal framework is sufficient and that the proposed amendments would only complicate governance and lead to misuse of public resources.
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