The issue of public participation in law-making has once again troubled the Kenya Kwanza government. The administration’s ambitious plan to privatize 11 parastatals under the Privatisation Act, 2023, has been halted, as the High Court declared the Act unconstitutional.
“The National Assembly failed in its duty to ensure public participation that met both quantitative and qualitative standards. The six memoranda submitted, along with input from a few stakeholders, were insufficient to reflect the people’s views as required by Articles 10 and 118 of the Constitution,” ruled High Court Justice Chacha Mwita.
The iconic Kenyatta International Convention Centre (KICC) was among the assets set to be privatized under the Act, but Mwita declared, “The decision to privatize KICC, a National Monument, violates the provisions of the Monument and Heritage Act and is therefore unconstitutional, unlawful, and void.”
Signed into law by President William Ruto nearly a year ago, the Act aimed to give the Executive the authority to sell public assets, which led the opposition to challenge it in court. The law granted a Cabinet Secretary significant powers to identify assets for privatization and initiate the process, potentially bypassing Parliament’s oversight role. Additionally, the Act stipulated that if the National Assembly did not ratify the sale of a public entity within 90 days, the sale would be automatically deemed ratified, a provision that Mwita also ruled unconstitutional.
The Orange Democratic Movement (ODM) party opposed the Act in court, arguing that selling key parastatals like Kenya Pipeline Limited, Kenya Seed Company, and Kenya Literature Bureau posed a threat to national security, as these institutions should remain under government control for security reasons.
In addition to KICC, several other parastatals, including the National Oil Corporation of Kenya, Kenya Vehicle Manufacturers Limited, Mwea and Western Kenya Rice Mills, Rivatex East Africa, and the Numerical Machining Complex, have been saved from privatization.
