The High Court of Kenya declared the Privatisation Act 2023 unconstitutional on 24 September 2024.

Katiba Institute filed a petition challenging the constitutionality of sections 7, 22(5), 48(1), 50, and 64 of the Privatisation Act, 2023. The petition contested the decision to privatise six out of eleven parastatals: Kenyatta International Convention Centre (KICC), Kenya Pipeline Company Limited (KPC), New Kenya Cooperative Creameries Limited (NKCC), Kenya Seed Company Limited (KSC), Kenya Literature Bureau (KLB), and the National Oil Corporation of Kenya (NOCK).

The challenge was based on the fact that these parastatals are either monopolies or of strategic importance, making their sale to private entities irrational. Some are also profitable and self-sustaining, Furthermore, we argued that the public participation was illusory. The Court made the following determination:

Public participation

The country is founded on principles of national governance, and the National Assembly must openly conduct its business and involve the public. The Constitution is the supreme law, and the public must be involved in public participation. The National Assembly does not do the public a favour when inviting them to participate in public activities. As a result, the Privatisation Act of 2023 is unconstitutional in its entirety.

Privatising KICC

The court noted that KICC is a national monument that must be preserved and protected per Article 11(2) of the Constitution and the Monument and Heritage Act. As a result, privatising KICC goes to Article 11(2) of the Constitution and the Monument and Heritage Act.

Please download the Judgment.