The Court of Appeal has overturned a 2024 High Court decision that declared the National Government Constituencies Development Fund (NG-CDF) unconstitutional, ruling that the lower court erred in its interpretation of the Constitution.
In its judgment delivered on Friday, the appellate court set aside the High Court ruling that had ordered the fund to cease operations by June 2026, restoring the NG-CDF framework with limited exceptions.
The judges found that the High Court improperly invalidated the entire NG-CDF Act without conducting a detailed and principled constitutional analysis, noting that courts should only strike down legislation where there is a clear and direct conflict with the Constitution.
The High Court had ruled in September 2024 that the NG-CDF violated principles of devolution, separation of powers and public finance management, and that constituencies were not recognised units of service delivery under the Constitution.
However, the Court of Appeal disagreed, holding that the NG-CDF does not undermine devolution or encroach on county government functions, as it supports national government programmes implemented at the constituency level.
The appellate court stated that constituencies can lawfully serve as administrative units for the delivery of national government services and projects, including education, security-related infrastructure and social development initiatives.
On public finance, the judges ruled that NG-CDF allocations form part of the national government budget approved annually by Parliament and are subject to existing oversight and audit mechanisms, including scrutiny by the Auditor-General.
The court further held that the enactment of the NG-CDF law did not require Senate participation, as the legislation does not affect county governments’ functions or the sharing of revenue allocated to counties.
While largely upholding the Act, the Court of Appeal struck down one provision relating to the tenure of the constituency fund account manager, finding that it violated the doctrine of separation of powers.
The judges applied the principle of severability, ruling that the unconstitutional provision could be removed without affecting the rest of the law, which remains valid and enforceable.
As a result of the ruling, the High Court’s orders suspending or winding down the NG-CDF have been lifted, allowing the fund to continue operating across all constituencies.
The decision is seen as a major boost for Members of Parliament, who had challenged the High Court ruling and defended NG-CDF as a key tool for grassroots development.
The Court of Appeal judgment now provides clarity on the constitutional standing of the NG-CDF and reinforces the limits of judicial intervention in legislative policy choices.
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FELIX MAKONA
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