High Court dismisses bid to nullify Privatisation Act

The High Court has upheld the constitutionality of the Privatisation Act, 2025.

In its ruling, the court held that Parliament retained sufficient oversight over the process and that the law does not hand unchecked power to the Executive.

Justice Bahati Mwamuye dismissed a petition by civil society organisations that had sought to invalidate the law on the grounds that it undermined parliamentary authority.

At the heart of the dispute was whether the Act impermissibly shifted decision-making power from Parliament to the Cabinet Secretary, particularly in the identification of state assets for privatisation.

The petitioners argued that this amounted to an erosion of the separation of powers and exposed public assets to arbitrary executive action.

The court rejected that argument, finding that Parliament had not abdicated its role.

“The Privatisation Act 2025, when measured against the exacting standards of the Constitution, fully satisfies those requirements,” Justice Mwamuye stated.

He emphasised that the law establishes a framework that not only preserves but also strengthens the oversight role of Parliament.”

The judge made it clear that the ruling should not be read as an endorsement of privatisation as an economic policy.

“This judgment should not be read as an endorsement of privatisation as an economic policy. That is not the Court's role,” he said, reiterating the separation between policy judgment and constitutional review.

"The wisdom or folly of privatisation is a question for the political branches, the executive, which proposes policy, and the legislature, which approves it," he explained.

The Court’s role, he clarified, is limited to, but constitutionally vital, ensuring that whatever policy is chosen is implemented through lawful means and within constitutional limits.

The court also upheld the sufficiency of public participation, noting that the legislative process had “faithfully observed the conditional mandate of public participation and heeded the judicial guidance of this Court."

Furthermore, Justice Mwamuye highlighted that the Act provides strong safeguards for public assets.

He underscored that the law subjects executive discretion to clear, judicially reviewable criteria and channels all privatisation proceeds into the Consolidated Fund, ensuring transparency and parliamentary oversight.

By doing so, he said the Act maintains accountability without compromising the Executive’s ability to implement policy.

In conclusion, the High Court dismissed the petition in its entirety, reinforcing that while privatisation remains a political decision, the legal framework governing it is sound.

“The Privatisation Act 2025 survives that scrutiny,” Justice Mwamuye declared, affirming Parliament’s continuing oversight role and the constitutionality of the law.

Each party was ordered to bear its own costs, recognising the petitioners’ efforts as a good-faith attempt at public interest litigation.