The government is likely to suffer a setback in its quest to engage private investors to help it develop key infrastructural areas after the Katiba Institute challenged the Private Public Partnership Act of 2021 in court.
According to Court documents filed by Katiba Institute, the Public Private Partnership Act is unconstitutional as it omits parliament's oversight and approval processes.
The lobby argues that the Act undermines the constitutional framework for checks and balances thus leaving room for opaqueness.
''PPPs are an aspect of public expenditure that Parliament has the constitutional authority to approve and oversee. Therefore, the PPP law is unconstitutional because it excludes Parliament from the approval and oversight of PPPs,’’ Katiba Institute argued.
The lobby said with such omissions, the Executive is likely to hide key transparency requirements in its engagement with private developers as the tendering provisions in the act are not stipulated.
''Granting the national executive unrestricted discretion to decide whether Privately Initiated Proposals (PIPs) should be subjected to competitive tendering allows for opaqueness and arbitrariness,’’ it stated.
''The Public Procurement and Asset Disposal Act (PPADA) was enacted to operationalise constitutional procurement principles, including competitiveness and fairness, transparency, competitiveness, and cost-effectiveness. Excluding the Act from applying to PPPs excludes the applicability of these constitutional principles to PPPs, which is unconstitutional,’’ it added.
Katiba Institute, in its petition, wants the Judiciary to issue an injunction barring the government from continuing to engage with private companies to push for its key infrastructural ideas.
The move is likely to jeopardize the government’s engagement with key private groups like the Adani Group in modernisation of the Jomo Kenyatta International Airport(JKIA).
The government also contacted the Adani Group to enter into a partnership agreement to develop Kenya’s energy infrastructure, a move that would likely see the group take over the critical area.
Consequently, Katiba Institute told the court that the 30-year period for private developers to manage development projects is likely to burden Kenyans with a lot of debt that would have far-reaching effects.
‘’PPPs are long-term (up to 30 years), making the public's repayment burden intergenerational. This imposes a higher obligation on the Court to protect the interests of Kenyans over the private interests of companies,’’ it stated.
Should the court issue an order stopping the implementation of the Act, the government is likely to suffer in its quest to lessen the financial burden to develop the country’s key infrastructure.
