Why UK-based Kenyan wants new Privatisation Act quashed

The court has directed him to serve Attorney-General Dorcas Oduor and Parliament with the petition documents, within three days.

The case will be mentioned on November 17, for directions.

Mr Matindi says the purpose or effects of the Act is to privatise public entities by transferring, other than to a public entity, the assets and or liabilities of a public entity including the shares in a public entity.

“To the extent the Act provides for privatisation of public entities that hold public land as defined by Article 62 of the Constitution, it is the petitioner’s case that the whole Act is unconstitutional,” he says.

He cites several public entities, including Kenya Pipeline Company, Mt Elgon Lodge Ltd in Kitale, Golf Hotel (Kakamega), and Kabarnet Hotel in Baringo County.

Once public land is privatised, Mr Matindi says, it can no longer be held, used and managed in a manner that is equitable, efficient, productive and sustainable for the people of Kenya collectively.

“It also cannot be equitably accessed by persons other than the new, private owners,” he notes, adding that public land belongs to the people of Kenya, collectively, and cannot be privatised without violating Article 61(1).

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Mr Matindi says the privatisation of public land would, as provided by Article 64 of the Constitution, lead to its conversion to private land, held either under freehold or leasehold tenures.

He argues that there is no suggestion that land currently held by public entities to be privatised, would be converted into community land under Article 63 of the Constitution.

He adds that the Act is silent on which of these two holding tenures will apply to public land targeted for privatisation.

“This lack of clarity on such a critical aspect of matters to be dealt with under the Act, violates the national values and principles of governance under Article 10(2) of the Constitution, including the rule of law, democracy and participation of the people, good governance, integrity, transparency and accountability,” he says.

It is his argument that the conversion of public land to private, as contemplated by the Act, including on freehold tenure, is a threat to Article 201(c and d) of the Constitution.

The UK-based Kenyan says the privatisation would mean the burdens and benefits the public currently derives from holding public land, including by the public entities earmarked for privatisation, will no longer be available for equitable sharing between present and future generations.

Instead, he notes, present generation will convert previously owned resource (public land) to benefit only a small section of its own, depriving future generations the opportunity to equally, and equitably enjoy those benefits.

Mr Matindi further says that it is notable that, as provided by sections 6 and 54 of the Act, money raised from privatisations shall be paid into the Consolidated Fund if it is from the sale of a direct national government shareholding.

He says it is a matter of public record and notoriety that a significant percentage of revenue being currently collected by the government is being used to pay the national debt.

Mr Matindi argues that it is therefore inevitable that proceeds from privatisations will actually be used toward paying the national debt, rather than any investments for the benefit of present and future generations.

“In addition, should future generations wish to convert the privatised land back to public, they will have to pay compensation to the private owners, a threat to the duty to use public money in a responsible and prudent way,” he adds.

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