Constitutions are written to restrain power. They anticipate moments when governments, frustrated by accountability, seek shortcuts to escape oversight while retaining control. Kenya’s 2010 Constitution is explicit on this point. It does not merely describe how public money should be raised and spent; it deliberately locks public finance within a rigid framework of transparency, parliamentary control and audit. Any attempt to bypass that structure is not innovation. It is subversion.
The proposal to register a National Infrastructure Fund—targeting KSh 5 trillion—as a Limited Liability Company (LLC) is unconstitutional by design, not by accident. Articles 206, 210, 221 and 226 of the Constitution collectively establish a closed and exhaustive system for public finance. Public money must flow either 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 made accountable to the public through transparent processes, including public participation. An LLC fits nowhere within this constitutional architecture.
Article 206 commands that all money raised or received by the national government be paid into the Consolidated Fund unless Parliament expressly provides otherwise. This is not discretionary language; it is a constitutional safeguard designed to prevent the existence of parallel financial systems beyond legislative scrutiny. Article 210 reinforces this by prohibiting the imposition, waiver or variation of any tax or charge except as authorised by legislation. Revenue collection, therefore, is anchored firmly in Parliament, insulating citizens from unilateral executive financial decisions.
Article 221 governs the budgetary process and vests Parliament with exclusive authority to appropriate public funds. It requires detailed estimates, debate and approval before expenditure. Budgets are not procedural formalities; they are constitutional guardrails. Article 226 completes the framework by imposing strict requirements for transparency and accountability in public finance and subjecting all public entities to audit by the Auditor-General.
An LLC bypasses every one of these safeguards. It removes public money from the statutory framework that requires legislative creation, approval and oversight. It places trillions of shillings outside the constitutional audit mandate of the Auditor-General. It circumvents the budget process by vesting spending authority in corporate boards rather than Parliament. It eliminates public participation, replacing constitutional openness with shareholder secrecy. This is not a technical breach. It is a structural violation.
Public finance doctrine—both constitutional and comparative—rests on a simple premise: public money must remain public in character, control and accountability. Legal form matters. When the state opts for a private-law vehicle such as an LLC to manage public resources, it does so precisely because such entities are governed by confidentiality, discretion and managerial autonomy. These attributes may be useful in commerce. In governance, they are corrosive.
Proponents of such arrangements invoke efficiency, flexibility and investor confidence. But efficiency cannot trump constitutionality. Flexibility cannot override accountability. Investor confidence cannot justify democratic surrender. The Constitution intentionally makes public finance “inefficient” in managerial terms because speed without oversight is the historical pathway to corruption and impunity.
A KSh 5 trillion fund is not a marginal instrument. It is economy-shaping. To house such power in an LLC is to create a shadow treasury operating outside the constitutional order. History shows that shadow treasuries are always justified as temporary, technical or exceptional—and that they never remain so. They become vehicles for elite extraction, insulated from scrutiny until the damage is irreversible.
This is precisely why the Constitution insists that any public fund be established by an Act of Parliament. Legislation compels clarity: the fund’s purpose, sources of financing, governance structure, limits of authority, audit mechanisms and avenues for public challenge. An LLC answers none of these questions constitutionally. Its answers lie in articles of association, shareholder agreements and board resolutions—documents designed to exclude the public, not empower it.
What is ultimately at stake is constitutional culture. Once the state normalises the use of private vehicles to control public wealth, the line between public and private power collapses. Governance becomes transactional. Accountability becomes optional. Citizens are reduced from rights-holders to spectators.
“Lest we forget” applies here. Kenya’s history with grand funds, special vehicles and off-budget arrangements offers little reassurance. From Goldenberg-era schemes to opaque infrastructure financing, the pattern is consistent: complexity is weaponised 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 justified, can be created through proper constitutional channels: legislation, parliamentary oversight, 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 constitutional republic governed by law can afford that price.
