The High Court has declared the Privatisation Act, of 2023 unconstitutional because it was enacted without meaningful public participation.
In a blow to Kenya Kwanza’s plan to privatise 11 parastatals, High Court judge Chacha Mwita ruled that the Act also violates the oversight role of the National Assembly.
The court also said the planned privatisation of the Kenyatta International Convention Centre (KICC) was unconstitutional as the iconic building is a national monument.
“The entire Privatisation Act is unconstitutional, null and void for want of meaningful qualitative and quantitative public participation,” said the judge.
The judge said KICC is a national heritage and privatising it goes against Article 11(2) of the Constitution and the National Museums and Heritage Act.
Justice Mwita said KICC is a national monument that needs to be protected, and the decision to privatise it, is unlawful and void.
Raila Odinga’s Orange Democratic Movement (ODM) party opposed the privatisation of 11 institutions because of their strategic importance, arguing that plans to sell them as proposed by the Kenya Kwanza administration were a threat to Kenya's sovereignty.
Other than KICC, other State corporations lined up for privatisation were New Kenya Cooperative Creameries (KCC), National Oil Corporation of Kenya (NOCK), Mwea Rice Mills Ltd (MRM), Western Kenya Rice Mills Ltd (WKRM), Numerical Machining Complex Limited (NMC), Kenya Vehicle Manufacturers Limited (KVM) and Moi University owned Rivatex East Africa Limited (REAL).
Kenya Literature Bureau (KLB), Kenya Pipeline Company (KPC), and Kenya Seed Company have also been earmarked for sale.
The court said section 22(5) of the Privatisation Act, which provides that if the National Assembly does not ratify a decision on privatisation within 90 days, then the decision will be deemed ratified, is unconstitutional.
According to the judge, the section sidesteps Parliament’s oversight role.
While opposing the move, ODM said public assets such as the KLB, Kenya Seed Company, and the KPC are strategic installations central to Kenya’s national security, and whose sale may have serious national security implications.
The party said KLB is mandated to publish, print, and distribute educational books that are used in all major learning institutions in Kenya at reasonable prices for the ordinary Kenyan.
“It (KLB) is a critical player in Kenya’s education sector and ensures a rational balance between public and private sector motivations in the said sector,” the ODM said in submissions.
ODM party further said privatising Kenya Seed Company will expose the public to the whims of private entities in so far as seed sustainability and food security is concerned.
The Orange party added that KPC is the only corporation with the infrastructure capable of receiving and distributing petroleum products in Kenya and beyond.
“If the price volatility of petroleum and petroleum products owing to control by private Oil Marketing Companies is anything to go by and further considering the dependence of Kenya on petroleum as a source of energy, privatisation of the company may occasion serious national crises that may pose security risks to Kenya’s sovereignty,” the submissions stated.
The opposition party said under its current design, the Privatisation Authority cannot effectively discharge its role as an objective advisor to the government, as it exposes the Authority to conflict of interest and manipulation by the executive to the detriment of the public.
