President William Ruto's administration on Tuesday suffered a major setback after the High Court declared the Privatization Act unconstitutional.
Justice Chacha Mwita’s ruling slams breaks on government's plans to privatise state parastatals, including the Kenya International Convention Centre (KICC), Kenya Pipeline Company, New Kenya Cooperative Creameries, Kenya Seed Company, KLB, and the National Oil Corporation of Kenya.
The court ruled that the Act was enacted without adequate public participation, violating constitutional rights.
"The Constitution is the supreme law, and the public must be involved in public participation. The National Assembly does not do the public a favour by inviting them to participate," the Judge ruled.
Justice Mwita ruled that the KICC is a national monument and its proposed sale infringes on cultural and constitutional rights.
“The country is founded on principles of national governance, and the National Assembly must conduct its business in an open manner,” he said
The judgment stemmed from a petition filed in court by the Orange Democratic Movement (ODM) and the Katiba Institute, who argued the public was not allowed to give its views regarding the Act which made it easier to sell state enterprises to private companies.
They contended that these assets are strategically important to the nation and should remain public.
In December, the ODM and Katiba Institute challenged the government's move to privatize six out of eleven parastatals, asserting that the process lacked transparency and public engagement.
Through advocate Jackson Awele, ODM argued that the assets can only be privatized with the consent of the people at a referendum.
This is so because they form part of the sovereign wealth of Kenya with significant cultural and strategic importance to the public.
Katiba had contended that these parastatals are either monopolies or of strategic importance, making their sale to private entities irrational.
On October 9, 2023, President Ruto assented to the Privatization Bill, 2023 (the Impugned Act) into law and designated its commencement as October 27, 2023.
The impugned Act repealed the Privatization Act, of 2005 and thereby introduced several provisions.
The net effect according to the papers is to grant the Executive arm of government sweeping powers to dispose of prized assets comprised of Kenya’s sovereign wealth.
“In passing the impugned Act, the National Assembly and the President failed in there to protect and uphold the sovereignty of the People of Kenya,” ODM submitted.
