Cherargei proposes review of constituency funding for MPs who opposed Finance Bill 2026

Senator Samson Cherargei's recent proposal to review and potentially deny National Government Constituencies Development Fund (NG-CDF) allocations to constituencies whose Members of Parliament (MPs) opposed the Finance Bill 2026 has ignited a significant legal and political debate in Kenya. Cherargei argued that legislators who voted against the revenue-raising measures should not benefit from projects financed by the same tax proceeds. This article examines the constitutional and statutory implications of such a proposal, particularly in light of Kenya's constitutional guarantees of equality and non-discrimination, the established framework for public finance, and the independence of legislative action. It posits that any attempt to implement this proposal would likely face robust legal challenges for contravening fundamental principles of the Constitution and existing legislation.

Following the contentious passage of the Finance Bill 2026 by the National Assembly, Senator Samson Cherargei of Nandi County sparked a fresh political controversy with a proposal to penalize constituencies whose Members of Parliament (MPs) voted against the Bill. Senator Cherargei publicly advocated for a review of development fund allocations, suggesting that such constituencies should receive “zero development” funds, arguing that it is inconsistent for legislators to oppose revenue measures while expecting to benefit from projects financed by those very taxes.

This pronouncement, made shortly after the Finance Bill 2026 was approved, raises profound questions about the principles of equitable resource distribution, the constitutional role of elected representatives, and the rule of law in Kenya. While the sentiment behind the proposal may be rooted in political expediency, its practical implementation would undoubtedly challenge fundamental tenets of Kenya's constitutional democracy. This article delves into the legal framework governing constituency funding and constitutional rights to assess the viability and legality of Senator Cherargei's proposition.

The core thesis of this article is that Senator Cherargei's proposal, if pursued, would likely be deemed unconstitutional and unlawful. It directly conflicts with Article 27 of the Constitution, which guarantees equality and freedom from discrimination, and undermines the established statutory framework for the National Government Constituencies Development Fund (NG-CDF). Furthermore, it impinges upon the independence of legislative action, a cornerstone of parliamentary democracy.

The National Government Constituencies Development Fund (NG-CDF) is a critical mechanism for grassroots development in Kenya, established under the National Government Constituencies Development Fund Act 2015, as amended in 2016. The primary objective of the NG-CDF is to address poverty at the grassroots level and enhance regional equity in development by allocating a minimum of 2.5% of the national government's annual revenue to community-identified projects within each constituency. The fund is managed by the National Government Constituencies Development Fund Board at the national level and by committees at the constituency level, with the local MP chairing the committee that determines project priorities, though not personally controlling the funds.

The legal standing of constituency funds has seen a complex history. The precursor, the Constituency Development Fund (CDF) Act 2013, was declared unconstitutional by the Supreme Court in August 2022, primarily on grounds of violating the separation of powers and devolution principles. Subsequently, while the High Court also declared the NG-CDF Act 2015 unconstitutional in September 2024, this ruling was overturned by the Court of Appeal on February 6, 2026. The appellate court affirmed that the NG-CDF Act 2015 does not violate the principles of devolution or public finance, thereby restoring its constitutional validity. This legal journey underscores the importance of adhering to constitutional principles in the design and implementation of public funding mechanisms.

The Finance Bill 2026, like its predecessors, is a crucial legislative instrument for the Kenyan government, outlining the revenue-raising measures necessary to fund the national budget and various development projects across the country. The legislative process for such bills involves extensive debate and voting by Members of Parliament, who are elected to represent the diverse interests of their constituents. The passage of the Finance Bill is essential for the government to secure the resources required for its operations and development agenda.

Senator Cherargei's proposal to link NG-CDF allocations to an MP's vote on the Finance Bill 2026 directly confronts several fundamental constitutional principles in Kenya. Foremost among these is Article 27 of the Constitution, which unequivocally guarantees every person equality before the law and the right to equal protection and equal benefit of the law. It explicitly prohibits the State from discriminating directly or indirectly against any person on any ground. Public funds, such as the NG-CDF, are allocated to constituencies for the benefit of all residents, irrespective of their political affiliation or the voting record of their elected representative. To deny or reduce funds based on an MP's vote would constitute a discriminatory act against the constituents, violating their right to equal benefit of public resources.

Furthermore, the proposal undermines the independence of legislative action and the democratic process. Members of Parliament are elected to represent their constituents and are expected to vote according to their conscience and the interests of their electorate. Article 117 of the Constitution protects the freedom of speech and debate in Parliament, ensuring that legislators can express their views and vote without fear of reprisal. Penalizing a constituency for its MP's dissenting vote would create a chilling effect, coercing legislators into conformity rather than allowing for robust debate and diverse representation, thereby eroding the very essence of parliamentary democracy.

The National Government Constituencies Development Fund Act 2015, which governs the NG-CDF, outlines specific criteria for the allocation and utilization of these funds, typically based on factors such as population and poverty indices, aimed at promoting equitable development. The Act does not provide for political alignment or an MP's voting record as a criterion for fund allocation. Any attempt to introduce such a criterion through administrative means would contravene the statutory framework and the principles of transparent and accountable public finance, as enshrined in the Public Finance Management Act.

Judicial precedent in Kenya also strongly militates against discriminatory allocation of public resources. In a significant ruling in December 2024, the High Court nullified a new university funding model, declaring it unconstitutional for being discriminatory and for lacking adequate public participation, in violation of Article 27 of the Constitution. This case serves as a clear indicator that Kenyan courts are prepared to strike down policies that introduce discriminatory practices in the distribution of public funds, reinforcing the constitutional imperative of equality.

Implementing Senator Cherargei's proposal would not only be legally unsound but also practically unworkable and detrimental to national cohesion. It would create a system where development is politicized, leading to further marginalization of communities whose representatives hold dissenting views. Such a policy would foster division, punish citizens for the actions of their representatives, and ultimately undermine the constitutional mandate of equitable development across all regions of Kenya.

Senator Samson Cherargei's proposal to link constituency development funding to the voting patterns of MPs on the Finance Bill 2026, while perhaps politically charged, is legally untenable and fraught with constitutional challenges. It directly contravenes the fundamental constitutional guarantees of equality and non-discrimination under Article 27, which ensures that all citizens, regardless of their political representation, are entitled to the equal benefit of public resources. Furthermore, it undermines the principles of legislative independence and the established statutory framework governing the National Government Constituencies Development Fund.

Practising attorneys and legal professionals should be acutely aware of the significant legal risks associated with any attempt to implement such a discriminatory funding model. Any administrative action or legislative amendment seeking to enact this proposal would likely face immediate and robust challenges in the courts, drawing on strong constitutional provisions and recent judicial precedents against discriminatory public resource allocation. The legal community must remain vigilant in upholding the rule of law and safeguarding the constitutional principles that underpin equitable governance and democratic representation in Kenya. The focus must remain on ensuring that public funds are allocated and utilized transparently and equitably for the benefit of all Kenyans, as mandated by the Constitution and relevant statutes.