The High Court of Kenya on Tuesday, September 24, declared the Privatisation Act 2023 unconstitutional in its entirety.
In a ruling on a petition filed by the Katiba Institute and Orange Democratic Movement (ODM) Party, the court halted the sale of Kenyatta International Convention Center (KICC) terming it as unconstitutional null and void.
The court argues that KICC is a national monument and that its proposed sale violates constitutional and cultural rights.
It also stated that the country is founded on principles of national governance, and the National Assembly must conduct its business in an open manner and must involve the public.
“The entire Privatisation Act is unconstitutional, null and void for want of meaningful qualitative and quantitative public participation,” reads part of the ruling.
“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.”
Court Stops Sale of KICC and Other 5 Parastatals
Katiba Institute filed a petition challenging the constitutionality of sections 7, 22(5), 48(1), 50, and 64 of the Privatization Act, 2023.
The petition contested the decision to privatize six out of eleven parastatals: KICC, Kenya Pipeline Company, and New Kenya Cooperative Creameries Limited.
Also Read: KANU Ropes Ruto, Justin Muturi in KICC Land Tussle
Furthermore, the petitioners challenged the sale of Kenya Seed Company Limited, Kenya Literature Bureau and the National Oil Corporation of Kenya.
The challenge was based on the fact that these parastatals are either monopolies or of strategic importance, making their sale to private entities irrational.
Other corporations to be sold were, Mwea Rice Mills, Western Kenya Rice Mills Limited, Kenya Vehicle Manufacturers Limited, Rivatex East Africa Limited and Numerical Machining Complex.
The government revealed that one of the reasons it was selling the Kenya Literature Bureau and KICC was that because the two parastatals needed to be incorporated into limited companies.
On the other hand, National Oil Company is being privatised largely because of poor financial performance.
Also Read: Ruto Announces Suspension of CASs, Scraps 47 Parastatals
Privatisation Bill 2023
On 9 October 2023, President William Ruto assented to the Privatization Bill, 2023 (the impugned Act) into law and designated its commencement as 27th October 2023.
The impugned Act repealed the Privatization Act, of 2005 and thereby introduced several provisions.
Notably, the net effect according to the papers was to grant the Executive arm of government sweeping powers to dispose of prized assets comprised of Kenya’s sovereign wealth.
The court’s ruling comes after the High Court in June ruled that the land housing KICC belonged to the government.
While delivering the verdict, Justice Jacqueline Mogeni said the land was illegally and unlawfully acquired by Kenya African National Union (KANU).
She revoked the title issued to KANU, ruling that the Ministry of Tourism is the lawful owner of the land.
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