A three-judge bench has ruled that the government did not meet constitutional standards of transparency and public participation in the partial divestiture of its Safaricom shares.
The judges said the process was compromised by the failure to provide the public with important documents and information, including details about the proposed purchaser of the shares.
According to the court, the omissions prevented the Cabinet from having all the necessary information to properly assess the proposed divestiture.
The bench also found that the government made misrepresentations and failed to reveal the identity of the intended buyer during the process.
“We accordingly find that the Government of Kenya engaged in unexplained obscurity on the identity of the proposed buyer, made misrepresentation and concealed material information in respect of the partial divestiture throughout the process,” the court ruled.
The judges subsequently quashed and declared null and void all agreements, approvals and arrangements relating to the sale, merger, takeover or transfer of Safaricom to or involving any person or entity.
The court further ordered that the 15 per cent shareholding be restored to the Government of Kenya, on behalf of the people of Kenya.
The relevant approvals and transactions were therefore cancelled, with the government directed to retain the 15 per cent stake on behalf of Kenyans.
The bench said public participation cannot be treated as a procedural requirement where citizens are not given enough information to understand and contribute to a decision.
It noted that withholding relevant documents reduces public participation to a formality rather than allowing Kenyans to meaningfully scrutinise decisions involving public assets.
“Concealing or withholding material information and documents during public participation violates constitutional transparency requirements and invalidates the resulting policies or projects because it renders public engagement a cosmetic formality rather than a meaningful exercise,” the court added.
The judges stressed that citizens must have access to sufficient and relevant information before they can meaningfully participate in government decisions.
The court held that the obligation to facilitate informed public participation is particularly important when the government is making decisions concerning public assets.
