By Jerameel Kevins Owuor Odhiambo
Worth Noting:
- The High Court’s decision, spanning over 50 pages, offers a meticulous examination of the constitutional issues at stake. The judges, drawing upon a rich tapestry of constitutional principles and comparative jurisprudence, concluded that several aspects of the NG-CDF Act, 2015, were indeed unconstitutional.
- Central to their reasoning was the principle of separation of powers, a cornerstone of constitutional democracy eloquently articulated by Justice Jackton Ojwang in the landmark case of “Speaker of the Senate & another v Attorney-General & 4 others” [2013] eKLR, where he stated, “The Constitution of Kenya, 2010, just as much as the Constitution of any other country, is not to be perceived as an abstract concept, floating in the air as a piece of pure legitimacy-theory.”
Introduction
The intersection of constitutional law and public finance management has long been a subject of intense scholarly debate and judicial scrutiny. As noted by eminent legal scholar Yash Ghai in his seminal work “Constitutionalism and the Challenge of Ethnic Diversity” (2000), “The allocation of public resources is not merely a technical exercise but a profound statement of a nation’s values and priorities.” This observation resonates profoundly with the recent High Court of Kenya’s judgment on the constitutionality of the National Government Constituency Development Fund (NG-CDF). The decision, represents a significant milestone in Kenya’s constitutional jurisprudence, particularly concerning the separation of powers, devolution, and the management of public finances. The judgement, while laudable in its affirmation of constitutional principles, raises complex questions about judicial pragmatism and the unintended consequences of well-intentioned legal interventions. As we delve into this analysis, it is imperative to consider the words of Justice Albie Sachs of the South African Constitutional Court, who posited in “The Strange Alchemy of Life and Law” (2009) that “Judges must remember that the authority of the courts is derived from the Constitution and the people… We are not a third chamber of Parliament, we are not a super-legislature.”
Factual and Legal Background
The NG-CDF, established in 2003 and subsequently modified through various legislative iterations, has been a contentious feature of Kenya’s fiscal landscape for nearly two decades. The fund, designed to spur grassroots development by allocating resources directly to constituencies, has been both praised for its potential to address localized needs and criticized for its alleged contravention of constitutional principles. The legal challenge to the NG-CDF Act, 2015, was brought by a coalition of civil society organizations, including The Institute for Social Accountability (TISA) and the Centre for Enhancing Democracy and Good Governance (CEDGG). The petitioners contended that the NG-CDF violated the principles of separation of powers, the division of revenue between national and county governments, and public finance management as enshrined in the 2010 Constitution of Kenya. The case’s journey through the judicial system, culminating in this High Court decision, reflects the complex interplay between legislative intent, constitutional interpretation, and the evolving nature of Kenya’s devolved governance structure. The petitioners’ arguments centered on the fund’s alleged encroachment on the functional and fiscal autonomy of county governments, as well as its potential to undermine the oversight role of the National Assembly. Conversely, the respondents, including the National Assembly and the Attorney General, defended the NG-CDF as a crucial instrument for equitable national development, arguing that it complemented rather than conflicted with the devolved system of government.
The Court’s Reasoning and Key Findings
The High Court’s decision, spanning over 50 pages, offers a meticulous examination of the constitutional issues at stake. The judges, drawing upon a rich tapestry of constitutional principles and comparative jurisprudence, concluded that several aspects of the NG-CDF Act, 2015, were indeed unconstitutional. Central to their reasoning was the principle of separation of powers, a cornerstone of constitutional democracy eloquently articulated by Justice Jackton Ojwang in the landmark case of “Speaker of the Senate & another v Attorney-General & 4 others” [2013] eKLR, where he stated, “The Constitution of Kenya, 2010, just as much as the Constitution of any other country, is not to be perceived as an abstract concept, floating in the air as a piece of pure legitimacy-theory.” The High Court found that the involvement of Members of Parliament in the administration and management of the NG-CDF contravened this fundamental principle by blurring the lines between legislative and executive functions. This finding aligns with the scholarly perspective of Tom Ginsburg and Aziz Huq in “How to Save a Constitutional Democracy” (2018), where they argue that “the separation of powers is not merely about institutional design but about preserving the integrity of democratic governance.”
Furthermore, the Court’s analysis of the NG-CDF’s impact on devolution drew heavily from the constitutional architecture of revenue allocation and the functional distinctiveness of the two levels of government. The judgment referenced the pivotal case of “Council of Governors & 47 others v Attorney General & 3 others” [2020] eKLR, where the Supreme Court of Kenya emphasized the importance of maintaining clear boundaries between national and county functions. In applying these principles to the NG-CDF, the High Court found that the fund’s operations encroached upon functions constitutionally reserved for county governments, thereby undermining the spirit and letter of devolution. This reasoning resonates with the scholarly work of Nic Cheeseman in “Democracy in Africa: Successes, Failures, and the Struggle for Political Reform” (2015), where he posits that “effective devolution requires not just the transfer of resources but also the respect for constitutionally mandated spheres of autonomy.”
The Court’s examination of the public finance management aspects of the NG-CDF was equally incisive. Drawing parallels with international best practices, the judges referenced the South African case of “Glenister v President of the Republic of South Africa and Others” [2011] ZACC 6, which underscored the importance of transparent and accountable public finance systems in upholding constitutional democracy. The High Court found that the NG-CDF’s structure and operations fell short of the constitutional standards for public finance management, particularly in terms of oversight and accountability mechanisms. This finding aligns with the scholarly perspective of Migai Akech in “Administrative Law” (2016), where he argues that “public finance management is not merely a technical exercise but a fundamental aspect of constitutional governance.”
The Paradox of Suspended Declarations of Unconstitutionality
Despite the Court’s unequivocal finding of unconstitutionality, the judgment takes an unexpected turn by suspending the declaration of invalidity till 30th June 2025 (for Justice Mugure) and 30th June 2026 (for the Majority decision). This decision, while seemingly pragmatic, raises profound questions about the nature of constitutional supremacy and the role of the judiciary in enforcing constitutional norms. The practice of suspending declarations of unconstitutionality, while not unprecedented, has been the subject of intense scholarly debate. As noted by Mark Tushnet in “Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law” (2008), such suspensions can “create a temporal space in which unconstitutional laws continue to operate, potentially undermining the very constitutional order courts are meant to protect.” The High Court’s justification for this suspension, citing the need to avoid a legal vacuum and allow for legislative rectification, echoes similar reasoning in cases like “Attorney General v Dickson Munene & 9 others” [2019] eKLR. However, this approach raises critical questions about the immediacy of constitutional remedies and the court’s role in balancing legal principle with practical governance considerations.
The suspension of the declaration of unconstitutionality in this case is particularly problematic given the nature of the constitutional violations identified. As argued by Richard Albert in “Constitutional Amendments: Making, Breaking, and Changing Constitutions” (2019), “When courts identify fundamental breaches of constitutional architecture, immediate remediation should be the norm, not the exception.” The Court’s decision to allow the continued operation of an unconstitutional framework, albeit temporarily, could be seen as an inadvertent endorsement of constitutional infringement. This approach stands in stark contrast to the more robust stance taken by the Constitutional Court of South Africa in cases like “Executive Council of the Western Cape Legislature and Others v President of the Republic of South Africa and Others” [1995] ZACC 8, where the court emphasized the need for immediate cessation of unconstitutional practices, even in the face of potential administrative challenges.
The paradox created by this suspension is further compounded by the Court’s simultaneous issuance of conservatory orders restricting the further disbursement of funds under the NG-CDF Act. This juxtaposition of suspending the declaration while also limiting the Act’s operation creates a legal limbo that could potentially exacerbate rather than alleviate the constitutional crisis. As noted by Jill Cottrell and Yash Ghai in “The Role of the Courts in the Protection of Economic, Social and Cultural Rights” (2004), “Judicial remedies in constitutional cases must be clear, consistent, and capable of immediate implementation to maintain the integrity of the constitutional order.”
Implications for Constitutional Interpretation and Judicial Role
The NG-CDF judgment, while significant in its affirmation of constitutional principles, raises important questions about the evolving role of the judiciary in Kenya’s constitutional democracy. The Court’s approach reflects a tension between what Rosalind Dixon and Tom Ginsburg term “engaged minimalism” in their work “Comparative Constitutional Law in Latin America” (2017) and a more activist judicial posture. On one hand, the Court’s detailed analysis and clear findings on unconstitutionality demonstrate a commitment to robust constitutional review. On the other, the suspension of the declaration suggests a reluctance to fully embrace the consequences of such a review.
This tension speaks to broader debates about judicial restraint and activism in constitutional adjudication. As argued by Theunis Roux in “The Politico-Legal Dynamics of Judicial Review: A Comparative Analysis” (2018), “Courts in young democracies often find themselves navigating treacherous waters between principled decision-making and pragmatic consideration of political realities.” The High Court’s decision in the NG-CDF case exemplifies this navigation, attempting to balance constitutional fidelity with concerns about governance continuity and legislative prerogatives.
However, the Court’s approach also risks undermining the very constitutional principles it seeks to uphold. By allowing an unconstitutional mechanism to persist, even temporarily, the judgment may inadvertently weaken the normative force of constitutional supremacy. This concern is eloquently articulated by former Chief Justice Willy Mutunga in his dissenting opinion in “Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others” [2014] eKLR, where he warns against judicial decisions that “create a penumbra of constitutional uncertainty.”
Conclusion
The High Court’s judgment on the NG-CDF represents a significant milestone in Kenya’s constitutional jurisprudence, offering a nuanced examination of the interplay between development initiatives, devolution, and constitutional governance. While the Court’s analysis of the fund’s unconstitutionality is commendable for its depth and clarity, the decision to suspend the declaration of invalidity introduces a problematic element of constitutional ambiguity. This approach, while perhaps motivated by pragmatic considerations, risks setting a precedent that could erode the immediate enforceability of constitutional norms.
As Kenya continues to grapple with the complex challenges of implementing its 2010 Constitution, decisions like the NG-CDF judgment serve as critical points of reflection on the role of the judiciary in shaping constitutional democracy. The tension between legal principle and governance practicalities evident in this case underscores the need for ongoing scholarly and public debate on the nature of constitutional remedies and the limits of judicial discretion. As we move forward, it is imperative that courts, legislators, and citizens alike remain vigilant in upholding the supremacy of the constitution, even when doing so requires difficult transitions in governance structures.
In the words of Justice Albie Sachs, “The Constitution is not simply a structure of government, it is a commitment to values.” The challenge for Kenya’s judiciary, as exemplified by the NG-CDF case, is to ensure that this commitment is honored not just in principle, but in the immediate and tangible realities of governance and public resource allocation. Only through such unwavering commitment can the transformative potential of Kenya’s constitutional order be fully realized.
The writer is a legal researcher and lawyer.
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