The Lower Eastern Times Opening The Third Eye
A three-judge bench of the High Court has nullified the government’s planned divestiture of its 15 per cent stake in Safaricom, ruling that the process breached both the Constitution and existing laws.
The court determined that the decision to sell part of the government’s holding in Safaricom amounted to a public policy decision and therefore required meaningful public participation before it could proceed.
According to the judges, neither the Cabinet nor Parliament subjected the proposed transaction to sufficient public participation. As a result, the process was found to be unconstitutional.
The court also criticised the government for failing to disclose adequate information about the proposed sale, particularly details concerning the identity of the intended purchaser.
The judges said the government created what they described as “unexplained obscurity” surrounding the buyer, while also making misrepresentations and withholding important information related to the divestiture.
The bench emphasised that withholding or concealing significant documents during public participation violates constitutional requirements for transparency and accountability.
The court ruled that public participation must be genuine, meaningful and informed. Citizens must be given enough information to understand and effectively contribute to decisions involving public assets.
The judges further found that the proposed transaction, including arrangements involving the merger, takeover or transfer of the government’s Safaricom shares, was unlawful.
As a result, the court cancelled all agreements, approvals and other arrangements connected to the proposed sale, merger, takeover or transfer of the shares to any individual or entity.
The court also directed that the 15 per cent Safaricom stake be returned to the Government of Kenya, to be held in trust for the Kenyan people.
All approvals and transactions arising from the proposed divestiture were consequently quashed and declared null and void.
The ruling means the Government of Kenya will retain its 15 per cent ownership stake in Safaricom on behalf of the people of Kenya.
