Assent to Infrastructure law settles legal question, but legitimacy doubts linger

President William Ruto declared the signing into law of the National Infrastructure Fund (NIF) this week as the most consequential event in the country’s development history. While this serves the political optics of the day, good students of the country’s development history would know that there have been bigger events that have shaped national development outcomes over the past six decades.

For instance, political choices like reverting the country from a multiparty democracy into a de jure (legally enforced) one-party state shortly after independence in 1963 fundamentally altered the redistribution of capital and wealth during a critical transition window from colonialism. High-profile political assassinations over the decades have also significantly shaped the country’s leadership and the consequent policy choices.

Other events like the coup attempt in 1982, the return to multiparty democracy in 1992, the end of KANU’s reign in 2002, the Post-Election Violence (PEV) of 2007 and the repeal of the independence constitution in 2010 have had far more far-reaching impacts on important development indicators like wealth disparities, human rights and freedoms, property rights, judicial safeguards and the rule of law, among others.

In any case, it is too early to know how the newly established infrastructure fund will impact the country’s overall development trajectory, assuming the Act does not run into headwinds in the Constitutional Court. Besides, there is persuasive evidence that there has never been any shortage of good policy intentions and legislation in this country. Our own policy documents, development plans, and laws have built other nations except ours.

What everyone in the streets acknowledges, but the ruling elites deny, is that the developmental woes of this country have nothing to do with a lack of good policies or laws. Our primary developmental problem has been the private greed of those entrusted with power at the expense of the public good. More specifically, the majority of our developmental intentions are sugar-coated as public goods or services when the real interest lies in the tenders that emerge from them.

Good company

Legally, the NIF has met the threshold envisioned under Section 24 of the Public Finance Management (PFM) Act of 2012, which permits the Cabinet Secretary in charge of the National Treasury to establish special-purpose funds with the approval of Parliament. This resolves the earlier legal lacuna where the Cabinet had purported to establish such a fund.

Looking at the speed with which the law has been processed, it is obvious there are powerful forces behind it. After all, the targeted seed capital has already been mobilised from the Kenya Pipeline and Safaricom divestitures. Hours after assent of the NIF Bill into law, the National Assembly cleared the sale of 15 per cent of the government’s holding in Safaricom, effectively removing the final obstacle to the controversial sale.

The question now shifts to what happens with the funds mobilised and whether the Fund will survive the curse of similar funds before it.

While this column would want to be optimistic about the long-term developmental outcomes from the Fund, the hard evidence available from history and ongoing programmes pushes us to hesitate, perhaps pause for deeper reflection. In the last three years of this administration, the sports levy, established under the Sports Act of 2013 and regulated by the PFM (Sports, Arts and Social Development Fund) Regulations 2018, which was intended to create a sustainable financial base for the growth, development, and promotion of sports, has been securitised for over 15 years in a very opaque manner.

The Talanta Sports City Stadium project that has been collateralised is presently undergoing serious scrutiny over its cost, cost variations, procurement and contractual transparency, as well as unexplained changes of the implementing agency, both in Parliament and by the Public Auditor. All indications lean towards another mega public heist to add to the ever-growing list of multibillion-shilling scandals.

The exact scenario has been replayed with the Tourism Fund for the redevelopment of the Bomas of Kenya complex. The same questions of cost, cost variations, actual contractual commitments, procedural safeguards, and procurement legality are under scrutiny by the Auditor-General. In both cases, the President completely ignores the serious accountability queries being raised, preferring to propagate the notion that it is the first time these levies are doing something useful in the country.

Considering that these two funds have been around for some time now, does it mean the funds were only being plundered? Ordinarily, a sitting president would have unlimited access to intelligence on matters of such public interest. If it is true that these funds were not being applied for their intended use, why has no action been taken against those who plundered them?

Scary pattern

This trail of thought leads any critical analyst to a worrying pattern for previously existing and recently established funds. The Social Health Insurance Fund (SHIF) and the Housing Levy fund are on the same gravy train of opaqueness and weighty audit queries. The National Assembly, the constitutionally mandated oversight body, has proven completely helpless in conclusively resolving these accountability questions.

It is this pattern that must worry all of us. The modus operandi with all these funds is simple: create the fund, line it with money, find tenders to clean every coin in it, and lock the flows for several years to come. Whoever asks questions about accountability is labelled an enemy of development and must be silenced by whatever means.

A curious introduction to the NIF, which was not in the original draft Bill submitted to Parliament, is the Governing Council. The initial Bill only had the Board and investment approval by the Cabinet. This extra layer of governance is of serious curiosity, especially when one looks at its composition and authority. Chaired by the CS Treasury, its other members are the Central Bank Governor, the Attorney-General, and six members appointed by the President.

This is the body now mandated to competitively select the Board of Directors for the Fund and provide high-level policy and investment oversight for the Fund’s programmes. Is this afterthought addition an innocent layer of governance or a well-calculated move to reset the fund for its true purpose?

To a curious eye, it cannot escape notice that the fund will technically be under the firm control of the President. Hand-picking all six council members, together with his other substantive appointees, centralises control in the Presidency. Automatically, the earlier implied illusion of a professional board to manage the Fund has been vacated indefinitely. The imperial powers vested in the CS Treasury in the Cabinet version of the fund have also been reset by reverting him or her to the position of Chair of the Council.

Another incidental but curious observation is that there already appear to be predefined projects. On his official X handle, the President has listed key projects to be financed by the fund as 10,000 megawatts of clean energy, 50 mega dams, 200 micro-dams, 1,000 small dams, 2,500 km of dual carriageways, 28,000 km of roads, the extension of the SGR to Malaba and Kisumu, and the expansion of Jomo Kenyatta International Airport.

Is there anything wrong with these projects? Technically, no. The problem is that there is a trail leading to them. Those who remember the State of the Nation Address of November 20, 2025, will recognise the code. Are these projects the priorities under the Medium Term Plan IV that implements Vision 2030? Are they aligned with the rest of the economic ecosystem before we line up the trillions?

Ultimately, for infrastructure investments to drive the desired developmental outcomes, they must be aligned with the rest of the fundamentals of the economic structure. Think about that.