By Gitobu Imanyara
Constitutions are written to restrain power, anticipating when governments, frustrated by accountability, seek shortcuts to escape oversight while retaining control.
Kenya’s 2010 Constitution is explicit on this. It does not only describe how public money should be raised and spent but locks public finance within a rigid structure of transparency, parliamentary control, and audit. Any attempt to bypass that structure is subversion, not innovation.
The proposal to register a National Infrastructure Fund, targeting KSh 5 trillion, as a Limited Liability Company (LLC) is unconstitutional by design, not accident. The Constitution is clear. Articles 206, 210, 221, and 226 collectively establish a closed system for public finance.
Public money must either flow through the Consolidated Fund or through a public fund created by an Act of Parliament. It must be raised and appropriated with parliamentary approval, subjected to audit by the Auditor-General, and accountable to the public through transparent processes, including public participation. An LLC fits nowhere in this system.
Article 206 mandates that all money raised or received by the national government be paid into the Consolidated Fund unless excluded by Parliament. This is a command, not a suggestion, ensuring that public money cannot exist in parallel systems beyond legislative scrutiny.
Article 210 goes further, stating that no tax or charge can be imposed, waived, or varied except as authorized by legislation. This anchors revenue collection in Parliament, preventing the Executive from imposing financial obligations without democratic consent.
Article 221 governs the budget process, giving Parliament control over appropriating public funds. It requires detailed estimates, debate, and approval before money can be spent. Budgets are not optional; they are constitutional guardrails. Article 226 seals the system with accountability, requiring transparent management of public finances and subjecting all public entities to audit by the Auditor-General.
An LLC bypasses all this. It removes the fund from the statutory framework requiring legislative creation, approval, and oversight. It bypasses the Auditor-General by placing trillions of shillings outside public entities subject to constitutional audit.
It bypasses the budget process by enabling corporate boards to make spending decisions instead of Parliament. It bypasses public participation, replacing constitutional transparency with shareholder secrecy. This is not a technical violation. It is structural.
Public finance doctrine, both constitutional and comparative, rests on one premise, that public money must remain public in character, control, and accountability. The legal form matters. When the state chooses a private-law vehicle like an LLC to manage public resources, it does so because private entities are governed by confidentiality, discretion, and managerial autonomy. These features may be useful in commerce but are toxic in governance.
Supporters of such arrangements argue efficiency, flexibility, and investor confidence. But efficiency cannot trump constitutionality. Flexibility cannot override accountability. Investor confidence cannot justify democratic surrender. The Constitution deliberately makes public finance “inefficient” in a managerial sense because speed without oversight leads to corruption and impunity.
A KSh 5 trillion fund is not a footnote in public finance. It is an economy-shaping instrument. To place such power in an LLC is to create a shadow treasury, one operating outside the constitutional order. History shows that shadow treasuries are justified as temporary, technical, or exceptional, but they never remain so. They become channels for elite extraction, immune from scrutiny until irreversible damage is done.
This is why the Constitution insists that any public fund must be created by an Act of Parliament. Legislation forces clarity: What is the fund’s purpose? How is it financed? Who governs it? What are its limits? How is it audited? How can citizens challenge abuse? An LLC answers none of these questions constitutionally.
Its answers lie in articles of association, shareholder agreements, and board resolutions, documents designed to keep the public out, not invite it in. At stake is not just legality but constitutional culture. Once the state normalizes using private vehicles for public wealth, the distinction between public and private power collapses. Governance becomes transactional. Accountability becomes optional. Citizens are reduced to spectators.
“Lest we forget” applies here, too. Kenya’s history of grand funds, special vehicles, and off-budget arrangements is not reassuring. From goldenberg-era schemes to opaque infrastructure financing, the pattern is consistent: complexity is used to defeat accountability, and scale is used to overwhelm scrutiny. Calling this unconstitutional is not radical. It is conservative in the truest sense, defending the Constitution against executive overreach.
The Constitution does not prohibit infrastructure development; it prohibits doing it in the dark. A National Infrastructure Fund, if necessary, can be created through proper channels; legislation, Parliament, public participation, and audit. Anything else is not reform; it is constitutional vandalism. When public money is privatised in form, democracy is hollowed out in substance. No nation governed by law can afford that price.
The writer is a former editor of the Nairobi Law Monthly.
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