From roads and ports to railways and energy systems, infrastructure is expensive everywhere, and governments across the world have created special funds to finance it. Kenya’s National Infrastructure Fund Act, 2026 appears, at first glance, to belong to that global trend.
Its purpose is to mobilise capital and accelerate infrastructure development. Kenya urgently needs infrastructure to unlock growth. But the question is not whether infrastructure financing is necessary. It is whether the legal architecture respects the Constitution.
Laws that manage public money must meet standards of transparency, accountability, and democratic oversight. When those safeguards weaken, even policies meant to do good can become instruments for concentrating power and mismanaging public wealth.
The Constitution was designed to prevent such risks. After decades of inadequate oversight, the framers of the 2010 Constitution created a finance framework. This framework rests on several pillars: parliamentary control over public expenditure, the Consolidated Fund as the central repository of public money, oversight by the Controller of Budget, and auditing by the Auditor-General. Together, these institutions ensure that public resources are managed through democratic institutions accountable to the people.
The National Infrastructure Fund Act threatens to disrupt this system. One troubling feature is that it allows proceeds from privatisation and sale of government shares to be transferred into the Fund. These are not ordinary revenues. They represent national assets built over generations through Kenyans' efforts. When such assets are sold, the proceeds become collective national wealth.
Under the Constitution, public money must pass through the Consolidated Fund and be spent only after Parliament authorises its use through the budget. This process is not bureaucratic red tape; it is the mechanism through which citizens exercise democratic control over public finances.
The new law establishes a structure in which large volumes of public money may be held and spent through the Fund’s internal governance structures. The Board approves expenditures, investments, and transactions. In effect, a parallel financial structure is created alongside the constitutional system of parliamentary appropriation. When public funds are removed from the budget process, the risk of reduced transparency and accountability increases.
Equally concerning is the Fund’s power to create special purpose vehicles and other investment structures. Such tools are common in infrastructure finance, but they can make it difficult for the public and Parliament to track national assets. Once projects are placed inside vehicles involving private investors, ownership structures can become opaque. Public assets can gradually be diluted through complex financial arrangements. Decisions about strategic infrastructure may then be shaped more by financial engineering than by democratic deliberation.
Another troubling aspect of the Act is concentration of authority within the Executive branch. Treasury Cabinet Secretary chairs the Governing Council, which determines the investment policy and direction of the Fund. This means a political office may influence which projects are prioritised and how billions of shillings are invested.
The Constitution is clear that public authority is a public trust to be exercised with accountability and transparency. Concentrating such strategic financial authority within the Executive risks undermining the checks and balances the Constitution was designed to preserve.
Supporters may argue that these concerns are exaggerated and that the Fund merely provides an innovative tool for financing infrastructure. Innovation in public finance is not inherently problematic. Many countries have used sovereign wealth funds and infrastructure funds to accelerate development. But their success rests on one critical principle: strong governance frameworks that insulate financial decisions from political interference.
Kenya must be careful because our constitutional history is rooted in a struggle to restrain excessive executive power. The financial provisions of the Constitution are safeguards designed to protect the nation’s wealth from misuse. This is why the constitutional challenge to the National Infrastructure Fund Act deserves attention.
The courts may soon be asked to determine whether the law is consistent with constitutional principles governing public finance. Such a case is not an attempt to obstruct infrastructure development. It is an effort to ensure Kenya pursues development without compromising the constitutional values that safeguard public resources.
Infrastructure can transform economies. But development achieved at the expense of constitutional accountability carries long-term costs. When public wealth is managed through opaque structures and concentrated authority, citizens eventually pay the price.
Kenya must build roads, railways, and energy systems. But it must do so within the framework of the Constitution. Anything less risks creating not merely an infrastructure fund, but what critics have begun to call a shadow treasury, one operating outside the democratic safeguards that protect the nation’s wealth. And that would be a greater danger than any delay in building the next highway.
