In a judgment delivered on Friday, the Court of Appeal reversed the High Court’s ruling that had invalidated the entire National Government Constituencies Development Fund (NGCDF) Act, 2015. The appellate bench found that the trial court had erred in its constitutional interpretation and in the remedies it granted.
The three-judge panel, led by Court of Appeal President Justice Daniel K. Musinga, with Justices Francis Tuiyott and A. O. Muchelule, set aside the High Court’s September 20, 2024, decision and decree.
The appellate court noted that the High Court failed to conduct a thorough analysis of the Act against constitutional principles, particularly regarding devolution, public finance, and the separation of powers. It further observed that the amendments made to the NGCDF Act in 2022 and 2023 did not nullify the issues raised in the petition.
On the matter of devolution, the Court ruled that the NGCDF Act does not contravene the distribution of powers between the national and county governments.
Regarding separation of powers, the judges determined that only section 43(9), which linked constituency fund managers’ tenure to parliamentary terms and election cycles, was unconstitutional and was therefore removed from the law.
The Court also dismissed the High Court’s claim that the Act violated public finance principles. It emphasized that legislation should not be struck down based on hypothetical concerns, noting that the NGCDF is part of government expenditure approved under the National Assembly’s Appropriations Act. The Act provides multiple layers of oversight, including audits by the Auditor-General and parliamentary review.
Criticizing the High Court, the appellate judges said the trial court failed to match the challenged provisions with constitutional text and did not clearly show any violation. Citing U.S. v. Butler (1936), they reiterated that courts are meant to check constitutionality, not assess policy merit.
The ruling follows an appeal by the National Assembly against the High Court’s September 24, 2024, judgment that had declared the NGCDF Act, 2015, unconstitutional.
