Court of Appeal overturns High Court ruling on NG-CDF’s legality

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The Court of Appeal Friday overturned a High Court decision that declared the National Government Constituencies Development Fund (NG-CDF) Act, 2015 unconstitutional.

In a judgment delivered, a three-judge bench led by Court of Appeal President Justice Daniel Musinga, alongside Justices Francis Tuiyott and Aggrey Muchelule, found that the High Court erred in invalidating the entire Act.

The appellate court however declared Section 43(9) unconstitutional for breaching the principle of separation of powers.

The dispute dates back to 2016, when petitioners challenged the NG-CDF Act, arguing that it undermined devolution, violated separation of powers, and created a parallel funding structure at the constituency level, which they said is not a constitutional service delivery unit.

In September 2024, a three-judge High Court bench agreed with the petitioners and declared the Act unconstitutional, though it allowed the fund to continue operating temporarily to avoid disrupting ongoing projects.

The National Assembly and the NG-CDF Board appealed the decision.

The appellate court rejected arguments that amendments made to the Act in 2022 and 2023 had overtaken the case, finding that core constitutional questions still required determination.

The judges ruled that the NG-CDF does not create a third tier of government and does not undermine the division of functions between national and county governments.

The court held that most governance structures within the Act are consistent with constitutional checks and balances.

The court struck down Section 43(9), which tied the tenure of the Fund Account Manager at the constituency level to the term of Parliament.

The judges held that this linkage improperly tethered an administrative officer to the political cycle, creating a perception of legislative control over executive functions.

“If the National Assembly have argued that they exercise no control in the administration and management of the Fund at the Constituency level, then the term of the Fund Account Manager should outlive that of the Member of the National Assembly in the constituency,” ruled the court.

“We find that section tethers the functionality and independence of the Fund Account Manager.”

The court found the Act does not duplicate county functions or promote wasteful expenditure and is sufficiently integrated into the national fiscal framework.

“Contrary to the finding by the High Court, the NGCDF Act, 2015 does not violate the principles and structure of devolution, or offend the division of functions between the national and county governments,” ruled the court.