The case of Orange Democratic Movement Party & 4 others v Speaker of National Assembly & 5 others which has declared the Privatisation Act, 2023 unconstitutional has sparked significant debate and interest in Kenya.
This article delves into the intricacies of this landmark decision, exploring its implications, the legal reasoning behind it, and what it means for the future of privatisation in Kenya.
Introduction to the Privatisation Act, 2023
The Privatisation Act, 2023 was enacted to provide a regulatory framework for the privatisation of public entities, including state corporations. The Act aimed to streamline the process of privatisation, ensuring transparency, accountability, and efficiency.
Key provisions included the establishment of the Privatisation Authority, the formulation of a privatisation programme, and the regulation of proceeds from privatisation.
The Constitutional Challenge
The constitutionality of the Privatisation Act, 2023 was challenged on several grounds. Critics argued that the Act violated fundamental principles enshrined in the Kenyan Constitution, including public participation, transparency, and accountability. The challenge was brought before the High Court, which scrutinised various aspects of the Act.
Key Legal Arguments
Lack of Public Participation: One of the primary arguments against the Act was the alleged lack of adequate public participation during its formulation and enactment. Article 10 of the Kenyan Constitution mandates public participation in all legislative processes. The petitioners argued that the government failed to engage the public meaningfully, thereby violating this constitutional requirement.
Transparency and Accountability: The petitioners also contended that the Act did not provide sufficient mechanisms to ensure transparency and accountability in the privatisation process. They argued that the provisions related to the Privatisation Authority and the privatisation programme were vague and lacked clear guidelines, potentially leading to misuse and corruption.
Violation of Economic and Social Rights: Another critical argument was that the Act could potentially violate economic and social rights guaranteed under the Constitution. The petitioners claimed that privatisation of essential public services could lead to increased costs and reduced access, disproportionately affecting vulnerable populations.
The High Court’s Ruling
After a thorough examination of the arguments, Hon Justice Chacha Mwita sitting in the High Court declared the Privatisation Act, 2023 unconstitutional. The court’s decision was based on several key findings:
Inadequate Public Participation: The court agreed with the petitioners that there was insufficient public participation in the legislative process. The court emphasised that public participation is a cornerstone of democratic governance and must be upheld in all legislative activities.
Lack of Clear Guidelines: The court found that the Act lacked clear and specific guidelines to ensure transparency and accountability. The provisions related to the Privatisation Authority and the privatisation programme were deemed too broad and ambiguous, potentially leading to arbitrary decision-making.
Potential Violation of Rights: The court also noted that the Act could potentially infringe on economic and social rights. The privatisation of essential services without adequate safeguards could lead to negative consequences for vulnerable populations.
Cultural Heritage: Privatisation of Kenyatta International Conference Centre (KICC), a national monument, contravenes Article 11(2) of the Constitution and the National Museums and Heritage Act and is, therefore, unconstitutional, unlawful null and void.
Implications of the Ruling
The declaration of the Privatisation Act, 2023 as unconstitutional has significant implications for the future of privatisation in Kenya. Here are some key points to consider:
Revisiting the Legislative Process: The ruling underscores the importance of public participation in the legislative process. Future legislation on privatisation will need to ensure meaningful engagement with the public to comply with constitutional requirements.
Strengthening Transparency and Accountability: The decision highlights the need for clear and specific guidelines to ensure transparency and accountability in the privatisation process. Future laws will need to address these issues to prevent misuse and corruption.
Protecting Economic and Social Rights: The ruling serves as a reminder that privatisation should not come at the expense of economic and social rights. Future legislation will need to include safeguards to protect vulnerable populations and ensure equitable access to essential services.
Restoration of Public Trust: By acknowledging the unconstitutionality of the Privatisation Act, the judiciary has taken a significant step towards restoring public trust in governance. Ensuring that future legislation is inclusive and transparent is essential for fostering a positive relationship between the government and its citizens.
Next Steps for the Government
In light of the court's ruling, the Kenyan government must consider the following steps:
Engage Stakeholders: The government should actively engage with stakeholders, including civil society, to gather input on how to reform the privatisation process.
Draft a New Bill: A new privatisation bill must be drafted, incorporating the necessary constitutional safeguards to protect public interests and property rights.
Strengthen Legal Framework: Enhancing the legal framework governing state-owned enterprises will help ensure that any future privatisation efforts are conducted in a manner that is fair, transparent, and accountable.
Frequently Asked Questions (FAQs)
1. What does the Privatisation Act, 2023 aim to achieve?
The act was intended to enhance the efficiency of state-owned enterprises and attract investment, but it faced constitutional challenges.
2. Why was the Privatisation Act deemed unconstitutional?
The court found it unconstitutional due to lack of public participation, potential violation of property rights, and concentration of power without adequate checks.
3. What are the implications of the court's ruling?
The ruling calls for a reassessment of privatisation policies, increased legislative scrutiny, and the need to restore public trust in government.
4. How can the government move forward?
The government should engage stakeholders, draft a new bill, and strengthen the legal framework governing privatisation.
Conclusion
Privatisations Halted: The Privatisation Act, 2023 Declared Unconstitutional in Kenya is a critical reminder of the importance of upholding constitutional principles in governance. The ruling highlights the need for public participation, transparency, and accountability in the privatisation of state-owned enterprises.
As the Kenyan government navigates this complex issue, it must prioritize the voices of its citizens and ensure that future legislation aligns with constitutional mandates. As Kenya moves forward, the legal landscape surrounding privatisation will continue to evolve.
Stakeholders must remain vigilant and engaged to ensure that the processes that govern public assets reflect the principles enshrined in the Constitution of Kenya, 2010. By doing so, the nation can navigate the challenges of economic reform while safeguarding the rights and interests of its citizens.
To learn more, see the full judgement in Orange Democratic Movement Party & 4 others v Speaker of National Assembly & 5 others (Constitutional Petition E491 of 2023 & E010 & E025 of 2024 (Consolidated)) [2024] KEHC 11494 (KLR) (Constitutional and Human Rights) (24 September 2024) (Judgment)
