In a landmark ruling on Tuesday, the High Court in Nairobi declared the Privatization Act 2023 unconstitutional, highlighting significant loopholes in the legislation that undermined public participation. Justice Chacha Mwita emphasized that the Act lacks the necessary framework for meaningful public engagement before its enactment, affirming the court’s commitment to upholding constitutional rights.
The decision came in response to a lawsuit filed by the Orange Democratic Movement (ODM), which argued that the public was denied an opportunity to express their views on the Act. The court underscored the importance of public involvement, stating, “The Constitution is the supreme law, and public involvement in participation is essential. The National Assembly does not do the public a favor by inviting them to engage.” This ruling underscores the judiciary’s role in safeguarding democratic processes and ensuring transparency in government actions.
Additionally, the court ruled that the Kenyatta International Convention Centre (KICC) is a national monument and an integral symbol of Kenya’s cultural heritage. The proposed sale of KICC was deemed unconstitutional, as it would violate both constitutional and cultural rights. Justice Mwita remarked, “KICC is a national monument that requires protection, and the decision to privatize it is unconstitutional, null, and void.”
The ODM party had previously challenged the government’s decision to privatize six out of eleven parastatals, including significant entities like the Kenya Pipeline Company (KPC) and New Kenya Cooperative Creameries Limited (New KCC). Through advocate Jackson Awele, ODM argued that such privatization initiatives require public consent via a referendum, given that these assets constitute a part of Kenya’s sovereign wealth and hold considerable cultural and strategic significance.
