The ghost of public engagement in the legislative process has returned to haunt Kenya’s Kwanza government.

The government’s ambitious plan to sell 11 parastatals through the Privatisation Act, 2023, will not come to fruition after the High Court pronounced the Act illegal and void.

“The National Assembly failed to fulfill its commitment to conduct public involvement that fulfilled both numeric and qualitative standards. According to High Court Justice Chacha Mwita, the six memoranda received, combined with a few stakeholders, were insufficient to properly represent the opinions of the people as required by Articles 10 and 18 of the Constitution.

If the Act had passed the legality test, the landmark Kenyatta International Convention Centre (KICC) would have been one of the parastatals targeted.

“A declaration is hereby issued that the decision to privatize KICC, a National Monument, contravenes provisions of the Monument and Heritage Act and is therefore unconstitutional, unlawful, and void,” according to Mwita.

The Act, signed into law by President William Ruto about a year ago, was intended to provide the Executive the authority to dispose of public assets, prompting the opposition to file a legal challenge.

It granted a Cabinet Secretary virtually unrestricted authority to identify assets for privatization and commence the privatization process, with the potential to bypass Parliament’s oversight role in law-making processes.

The Act further states that if the National Assembly does not approve the sale of a public parastatal within 90 days, the transaction is declared confirmed. Mwita also deemed this unconstitutional.

The Orange Democratic Movement (ODM) party filed a lawsuit to challenge the Act, claiming that the proposed sale of some parastatals, such as Kenya Pipeline Limited, the Kenya Seed Company, and the Kenya Literature Bureau, was critical to the country’s national security and should remain under government control for the same reasons.

Aside from the KICC, other companies protected from sale include the National Oil Corporation of Kenya, Kenya Vehicle Manufacturers Limited, Mwea and Western Kenya Rice Mills, Rivatex East Africa, and the Numerical Machining Complex.