Exclusive: Linda Jamii challenges legality of Privatisation Act in court

Linda Jamii challenges legality of Privatisation Act in court

A lobby group has moved to court challenging the bill that was assented to by President William Ruto on October 9 on privatisation of public entities.

In a petition filed at Milimani High Court by Operation Linda Jamii through its Director Fred Ogola, the plaintiffs claim that Ruto assented to the bill (now an Act) which abolishes the Privatisation Commission that was established under section 3 of Privatization Act 2005.

Ogola says the Act and will come into force 14 days after its gazettement in the Kenya Gazette.

The Petitioner avers that sometime in the month of February, 2023, the National Assembly, in the exercise of its legislative function conferred to it by Article 95(3) of the Constitution of Kenya, 2010 commenced the enactment of Privatisation Act, 2023 to align the policy and legal framework of privatisation of public entities with the Constitution of Kenya, 2010.

“The said Privatisation Act, 2023 abolishes the Privatisation Commission that was established under Section 3 of the Privatisation Act No. 2 of 2005 and in its place establishes the Privatisation Authority and removes the requirement of parliamentary approval for the Privatisation Authority”, Ogola states in court documents.

Additionally, he opines that by dint of Section 20(1) of the said Act, the Cabinet Secretary is conferred with unfettered discretionary powers to identify and determine state corporations and public entities to be included in the privatisation programme without public input, oversight and participation.

Further and without prejudice to the foregoing, the lobby states that the Privatisation Act, 2023 at Section 7 restructure, alters the implementation of privatisation programme from the Privatisation Commission/Authority to the Cabinet Secretary, an act which potentially risks decisions being made by the Cabinet Secretary without public oversight.

Ogola says the President assented to the Privatisation Bill, 2023 which was violative of the Constitution and various constitutional principles enacted by the National Assembly without referring the Bill back to the National Assembly for reconsideration of the violative aspects of the Bill.

He therefore said the President’s assent to the said Bill amounted to an abuse of the powers and mandate conferred by Article 115(1) of the Constitution.

“The impugned sections of the Privatisation Act, 2023 amounts to an infraction of national values and principles of governance of transparency, accountability and participation of the people under Article 10(2) of the Constitution of Kenya, 2010”, the lobby states in court documents.

Thus, Linda Jamii prays that the said infractions on the Constitution and constitutional principles be stopped by way of issuance of a conservatory order suspending the coming into force Sections 7 and 20 of the Privatisation Act, 2023 pending the hearing and determination of this application.

They claim that there is real danger that the Privatisation Act will be gazetted and will come into force after 14 days from the date of gazettement if not stopped by court.

High court judge Lawrence Mugambi has directed the respondents to be served within 7 days.

The case will be mentioned on November 27 for compliance and for further directions.

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