Gov’t Suffers Major Blow as Court Cancels 15% Safaricom Stake Sale

High Court has declared the government’s partial sale of its 15 per cent stake in Safaricom unconstitutional, ruling that the process was conducted in violation of the Constitution and existing laws.

The judges found that the planned decision to sell the stake was a public policy decision that required meaningful public participation before it could be implemented.

According to the court, both the Cabinet and the National Assembly failed to facilitate adequate public participation on the proposed sale, making the entire process null and void.

“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 ruled.

Court Ruling

Further, the court found the government at failing for failing to provide sufficient information to the public about the transaction including identity of the person who was supposed to buy.

The three-judge bench found that the government operated under what it described as “unexplained obscurity” by failing to disclose the identity of the intended buyer, while also making misrepresentations and withholding key information about the planned partial divestiture.

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Additionally, the judges ruled that concealing or withholding crucial documents during a public participation process violates the constitutional principles of transparency and accountability.

“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 ruled.

Public Participation

Court emphasised that public participation must be meaningful and informed, saying the government has a duty to provide citizens with sufficient information to enable them to effectively take part in decisions involving public assets.

In addition, judges further ruled that the proposed sale, including any arrangements linked to the merger, takeover or transfer of the government’s Safaricom shares, was unlawful.

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As a result, the bench nullified all agreements, approvals and transactions connected to the sale, merger, takeover or transfer of the shares involving any individual or entity.

Furthermore, court also directed that the 15 per cent Safaricom stake be restored to the Government of Kenya to hold in trust for the people of Kenya, with all approvals and transactions arising from the proposed divestiture cancelled and declared null and void.

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Safaricom HQ along Waiyaki Way. PHOTO/Business Today