KICC not up for sale as High Court declares Privatisation Act, 2023 unconstitutional

The High Court of Kenya has declared the Privatization Act, 2023, unconstitutional. This significant decision not only protects the Kenya International Convention Center (KICC) from being sold but also sets a precedent for how public assets should be managed in the country. The ruling, delivered by Justice Chacha Mwita, emphasizes the critical importance of meaningful public participation in decisions affecting national assets, asserting that such participation is foundational to democratic governance.

Background: Understanding the Privatization Act

On October 9, 2023, President William Ruto signed the Privatization Bill, 2023, into law, with its commencement set for October 27, 2023. This legislation aimed to repeal the Privatization Act of 2005 and streamline the process for privatizing state-owned enterprises. While the government framed this move as a necessary strategy to enhance efficiency and attract private investment, critics expressed alarm over the potential sale of key national assets without adequate public input.

The KICC, along with other strategic assets like the Kenya Pipeline Company, Kenya Literature Bureau, and Kenya Seed Company, was included in the privatization plan. The government’s push for privatization raised significant concerns about the implications for national sovereignty and the long-term consequences for Kenyans, especially given the history of mismanagement and corruption in the public sector.

The Legal Challenge: ODM vs. the State

In response to the Privatization Act, the Orange Democratic Movement (ODM) mounted a legal challenge. Represented by advocate Jackson Awele, the party argued that the privatization of these national assets could only occur with the explicit consent of the public, ideally through a referendum. The ODM emphasized that these assets form a vital part of Kenya’s sovereign wealth, which holds significant cultural, economic, and strategic importance to the nation.

Central to the ODM’s argument was the assertion that the swift and unilateral decision-making process employed by the government lacked transparency and public engagement. The party highlighted the constitutional obligation to uphold the sovereignty of the Kenyan people, stressing that decisions affecting public resources should involve comprehensive public participation. This legal challenge was rooted in a broader concern about the executive’s growing power to dispose of state assets without accountability.

The Court’s Ruling: A Defense of Public Participation

Justice Mwita’s ruling unequivocally sided with the arguments put forth by the ODM. He stated that the Privatization Act could not operate as it was enacted without meaningful public participation. In his judgment, he pointed out the critical role of Article 11(2) of the Constitution, which underscores the protection of national heritage, and the Monument and Heritage Act, declaring the KICC a national monument deserving of preservation.

“The decision to privatize KICC is unconstitutional, null, and void,” Justice Mwita emphasized, reinforcing the principle that public assets should not be treated merely as commodities to be sold at the discretion of government officials. This decision not only safeguards the KICC from privatization but also serves as a broader affirmation of the need for transparency and public input in government actions.

The ruling highlights a crucial aspect of democratic governance: that the people must have a say in how their resources are managed. By declaring the Privatization Act unconstitutional, the court has set a powerful precedent that could impact future legislative efforts concerning state assets.

Implications of the Ruling for Governance in Kenya

The implications of the High Court’s decision are profound and far-reaching. First and foremost, the ruling underscores the necessity for public engagement in governmental decisions, particularly those involving the privatization of national assets. This sets a legal standard that mandates transparency and accountability from public officials.

Furthermore, the ruling serves as a protection for other national assets that may be targeted for privatization in the future. The court’s affirmation of the KICC as a national heritage site may extend to other cultural and strategic assets, reinforcing the notion that public ownership is paramount in preserving the country’s identity and resources.

This decision may also encourage civil society and citizen advocacy groups to be more active in scrutinizing government actions. The ruling highlights the power of collective action in holding the government accountable, fostering a culture of participation that can lead to more equitable and just governance.

Government’s Response and Future Considerations

In the wake of the court’s ruling, the Kenyan government may need to reevaluate its approach to the privatization of state assets. The emphasis on public participation necessitates a rethinking of how privatization policies are formulated and implemented. Future privatization efforts may require broader consultations and engagement with citizens to ensure that their views and concerns are addressed.

Moreover, the ruling opens up discussions about alternative models of managing state assets. Instead of outright privatization, the government may explore public-private partnerships (PPPs) that allow for collaboration between the public sector and private entities while maintaining public ownership. This approach could enable the government to leverage private sector expertise and resources without relinquishing control over critical national assets.

The Role of Public Opinion and Civic Engagement

The ruling also highlights the importance of public opinion in shaping governance. The growing discontent among Kenyans regarding the management of state resources has underscored the need for a more participatory approach to governance. Citizens must be encouraged to voice their opinions and participate in decision-making processes to ensure that their interests are represented.

As Kenya continues to navigate complex issues surrounding governance, public opinion will play a vital role in influencing government actions. The recent ruling serves as a call to action for citizens to engage more actively in political processes, ensuring that their voices are heard and their rights are protected.

Conclusion: A Win for Democracy and Public Interest

The High Court’s decision to declare the Privatization Act unconstitutional marks a significant victory for public interest and democratic engagement in Kenya. Justice Mwita’s ruling reinforces the importance of public participation in governance, particularly concerning decisions that affect national heritage and resources.

By protecting the KICC and other state assets from privatization, the court has emphasized that public ownership is not merely a legal requirement but a fundamental aspect of national identity and pride. The ruling serves as a reminder that the management of state resources must reflect the will of the people, fostering a culture of accountability and transparency in government.

As Kenya looks to the future, this landmark decision has the potential to reshape the landscape of governance and public engagement. It underscores the critical role of citizens in holding their government accountable, ensuring that national assets are managed in a manner that benefits all Kenyans. The ruling not only preserves the KICC but also reaffirms the principles of democracy, transparency, and public participation, paving the way for a more inclusive and just governance framework in the years to come.