The High Court of Kenya declared the Privatisation Act, 2023 unconstitutional in Nairobi High Court Constitutional Petition E491 of 2023. The High Court held that although the decision to privatise state-owned assets is an executive one, subject to legislative oversight, the process must be in strict conformity with the Constitution of Kenya, 2010. Among the requirements of the Constitution of Kenya concerning legislative processes is that of public participation. In Robert N. Gakuru & others v Kiambu County Government & 3 others Nairobi High Court Consolidated Petition No 532 of 2013, the High Court stated that “public participation ought to be real and not illusory and ought not to be treated as a mere formality for the purposes of fulfilment of the Constitutional dictates…it behoves the Assemblies in enacting legislation to ensure that the spirit of public participation is attained both quantitatively and qualitatively.”
Applying the above test, the Court found that the enactment of the Privatisation Act, 2023 failed the test of compliance with the constitutional requirement of public participation.
In respect of the privatisation of the Kenyatta International Convention Centre (KICC), an iconic landmark that can be said to be Nairobi’s trademark, the Court held that having been declared a national monument through Gazette Notice Number 10686 published in July 2013, KICC was beyond the reach of the Privatisation Act. In sum, compliance with the Constitution is not optional. Furthermore, the Government must ensure that its policy measures are consistent with previously enacted measures.
