Blow to Gov't as High Court stops sale of KICC, 10 other parastatals

The ghost of public participation in the law-making process has come to haunt the Kenya Kwanza government again.

This as the government's ambitious plan to privatize 11 parastatals through the Privatisation Act, 2023, will not materialize after all, as the Act has now been declared unconstitutional and void by the High Court.

"The National Assembly failed to discharge its obligations to conduct public participation that met both quantitative and qualitative thresholds. The six memoranda received, coupled with a few stakeholders, could not effectively represent the views of the people as required by Articles 10 and 18 of the Constitution," High Court Justice Chacha Mwita ruled.

The iconic Kenyatta International Convention Centre (KICC) is among the parastatals that could have gone under the hammer had the Act stood the constitutionality test.

"A declaration is hereby issued that the decision to privatize KICC, a National Monument, contravenes provisions of the Monument and Heritage Act and is therefore unconstitutional, unlawful, and void," Mwita added.

The Act, signed into law by President William Ruto nearly a year ago, was designed to give the Executive power to dispose of public assets, prompting the opposition to move to court to challenge it.

It gave a Cabinet Secretary seemingly unhindered powers to identify assets for privatization and initiate the privatization process, with the possibility of bypassing Parliament’s oversight role in law-making processes.

The Act also provides that if a decision to ratify the sale of a public parastatal is not made by the National Assembly in 90 days, then the decision would be deemed ratified. Mwita similarly deemed this unconstitutional.

The Orange Democratic Movement (ODM) party moved to court to challenge the Act on the grounds that the proposed sale of some of the parastatals, like Kenya Pipeline Limited, the Kenya Seed Company, and the Kenya Literature Bureau, were key to the country's national security and needed to stay under the control of the government for the same reasons.

Aside from the KICC, the National Oil Corporation of Kenya, Kenya Vehicle Manufacturers Limited, Mwea and Western Kenya Rice Mills, Rivatex East Africa, and the Numerical Machining Complex, among others, have been saved from sale.