Petitioners seek suspension of Privatization Act, say it threatens sovereignty

In an application filed by Omar Faruk Maalim and Abdulhakim Dahir Sheikh, the petitioners want the court to certify their matter as urgent and issue conservatory orders stopping the National Assembly, the Attorney General, and the Cabinet Secretary for National Treasury and Economic Planning from operationalizing the Act.

The petitioners argue that the Act which came into force on November 4, 2025, after receiving presidential assent on October 15, 2025 was enacted without meaningful public participation, contrary to Articles 10 and 118 of the Constitution.

They contend that although the National Assembly placed a public notice on August 7, 2025 inviting memoranda on the Bill, no submissions were received from members of the public. The petitioners also argue that the National Assembly failed to use its social media platforms to reach a wider audience.

They further state that only four stakeholders ICPAK, PwC, KEPSA, and the Law Society of Kenya, submitted their views, and that the alleged public participation forums held across the 47 counties lacked proof of attendance, procedures followed, or minutes of deliberations.

According to the petitioners, this fell far below the constitutional threshold of reasonable and meaningful public participation.

Beyond the procedural concerns, the petitioners say the Act hands excessive and unchecked powers to the Cabinet Secretary for the Treasury, in violation of the principles of separation of powers and parliamentary oversight.

They cite Section 21(1), which grants the Cabinet Secretary authority to identify and determine which public entities are to be privatized, arguing that this excludes the public and sidelines Parliament’s oversight role.

The petitioners warn that the Act paves the way for the dangerous and unconstitutional transfer of sovereign power from the people of Kenya to private, unelected and unaccountable corporate entities. 

They caution that privatizing critical infrastructure such as water, energy, ports, transport systems, and telecommunications will place essential national assets in the hands of private actors whose primary responsibility is profit, not public welfare.

They also argue that privatization could create private monopolies, reduce state capacity, lead to undervaluation and disposal of strategic assets at throw-away prices, and permanently reduce government revenues needed for public services.

Additionally, they say the Act poses a direct threat to the socio-economic rights in Article 43 of the Constitution, including the right to health, education, housing, and sanitation, as privatization may make essential services unaffordable to vulnerable citizens.