The High Court of Kenya has made a significant ruling, declaring sections of the Public Private Partnerships Act, 2021, unconstitutional. This decision comes after a challenge by the Katiba Institute in November 2024, which argued that the law failed to ensure democratic control over public expenditure generated by PPP projects. The court's ruling highlights the need for greater transparency and public participation in PPP deals.
The case was sparked by two PPP deals in 2024, which were initiated privately by the Adani Group for the renovation of Jomo Kenyatta International Airport and electricity transmission by the Kenya Electricity Transmission Company. These deals were met with widespread opposition from Kenyans, who felt that they had not been adequately consulted or involved in the decision-making process. The projects were eventually cancelled.
The Kenyan constitution emphasizes democratic control over public spending, requiring parliamentary authorization for any withdrawal and expenditure of money from the Consolidated Fund. However, the PPP Act was found to have significant gaps, allowing PPP projects to proceed without adequate democratic input or approval. This lack of oversight and accountability raised concerns about the value for money that Kenyans were getting from these projects.
PPP projects involve a private entity undertaking to construct public infrastructure or provide a public service using its own funds. While these projects are typically multibillion and multi-year in nature, they are not cost-free. The government may have to incur upfront costs, provide guarantees, or assume risks, which can become financial obligations and liabilities that the government must shoulder.
The High Court's ruling highlights the need for greater transparency and public participation in PPP deals. The court found that the PPP Act failed to ensure democratic control over public expenditure generated by PPP projects, which resulted in a lack of oversight and accountability. This decision is expected to have significant implications for future PPP projects in Kenya.
The Adani deals were awarded without adequate consultation or public participation, which raised concerns about foul play. Other companies had submitted bids but were not considered, adding to the suspicion of irregularities. The court's ruling has vindicated the concerns of Kenyans who opposed the Adani deals.
The ruling is a significant step towards ensuring that PPP projects in Kenya are transparent, accountable, and subject to democratic control. The government will need to revisit the PPP Act and ensure that it is aligned with the constitution and the principles of democratic governance. This will help to build trust and confidence in PPP projects and ensure that they serve the interests of Kenyans.
Key points
- The Kenyan High Court has declared sections of the Public Private Partnerships Act unconstitutional due to lack of democratic control over public expenditure.
- The ruling was sparked by two PPP deals initiated privately by the Adani Group in 2024.
- The court's decision emphasizes the need for greater transparency and public participation in PPP deals.
