What are the consequences of judicially enforced economic policies? Is it the case that our courts have more power than before in economic policy making, with judges emerging as major decisions makers of economic policy?
I don’t have the answers. But as I write this column, we don’t have a privatisation law after a Court of Appeal judge recently declared the Privatisation of Act of 2023 unconstitutional.
This is how the judge put it: ‘The entire Privatisation Act 2023 is unconstitutional, null and void for want of meaningful, qualitative and quantitative public participation’.
Talk about throwing the baby out with the bath water. Or is a case of cutting off your nose to spite your face? I don’t know. But I just think that we could get informed and progressive policy- making if both the bench and the bar accorded more weight to impact of court decisions on the broader economic environment and economic policy in general.
Admittedly, courts are not the best places and fora to argue and determine issues such as the economic merits of privatisation or whether or not selling the family silver to fill the huge budget deficit gaps we have been running make economic sense.
Judges are not the best guys to rely on to articulate and spell for us the best legal privatisation framework for Kenya and what such a framework can do for us in terms of Foreign direct investment inflows and in terms of our reputation as a foreign investment location.
Courts are not the best forum to discuss and determine likely impact of the declaration of the Privatisation Act as unconstitutional on the existing agreements we have signed with multilateral lending institutions such as the World Bank and the International Monetary Fund.
Yet we must all accept that the declaration of the Privatisation Act as unconstitutional will reverberate way beyond the confines of the wood panelled courtrooms.
I also think that- as a country- we need to agree and have a national consensus on the basic minimum activities that must happen before the constitutional threshold for ‘a meaningful, qualitative and quantitative ‘public participation’. is deemed to have to have been met.
During the court proceedings, both Senate and the National Assembly insisted that the Privatisation Act 2023 was subjected to public participation.
First, they demonstrated that a notice inviting members of the public to submit views within 14 days was published in the newspapers.
Secondly, letters were sent to key stakeholders and interest groups inviting them to submit memoranda. They were PWC, KPMG and the Institute of Economic Affairs.
Thirdly, it was demonstrated to the court that the National Assembly Finance and Planning Committee also subjected the Bill to public participation by, first, putting a public notice in the newspapers where it invited submissions, secondly, inviting key stakeholders to make submission.
They were National Treasury, Privatisation Commission, PWC, Nairobi Securities Exchange and the Public Procurement Oversight Authority.
According to our judges, this is below the constitutional threshold for public participation. Justice Chacha Mwita who made the decision in the Privatisation Act case also took issue with the fact that notices inviting submissions from the public were not in Kiswahili.
The quote I enjoyed reading was by a judge in a 2014 public participation case who said ‘public participation ought to be real and not illusory, and ought not to be treated as a mere formality for the purposes of fulfillment of the dictates of the constitution. It behoves parties connecting legislation to ensure that the spirit of public participation is attained both quantitatively.’
I ask: how do you determine the threshold of ‘quantity’ in public participation especially in the context of new legislation you are introducing to implement economic reforms? The term public participation is ubiquitous today. The phrase trips out of the tongues of the so called donors, civil servants, politicians, NGOs and civil society actors all the time. The ideology of public participation has acquired a quasi-religious character.
Still, I fully support the decision by the court that declared the Privatisation Act of 2023 unconstitutional.
The intention of the drafters of the original privatisation framework was to create a Privatisation Commission operating with relative autonomy. Yet instead of a ‘commission’, this new law was introducing an entity described as an ‘authority’ responsible to the politically-appointed bureaucrats sitting at the National Treasury.
Indeed, the name ‘Privatisation Commission was deliberately chosen because the founding fathers wanted ultimate powers on the politically- sensitive task of sale of government assets to be insulated from medley hands of Cabinet Secretaries and Principal Secretaries.
Instead of a ‘board of directors’ the ultimate authority on privatisation issues would be run by ‘commissioners’ with powers to make executive decisions. Unlike directors of parastatals, the appointment of commissioners had to be approved by Parliament. We have a chance of going back to the drawing board.
