Kenya’s High Court recently made a landmark ruling that nullified the Privatisation Act 2023, signaling a significant setback for the government’s attempts to privatize state assets and meet conditions set by international lenders like the IMF. The ruling, however, offers key lessons for water justice advocates and African Commonwealth nations that share similar legal frameworks regarding public participation and constitutional rights, especially with respect to safeguarding essential public goods like water.
A Victory for Public Participation and Accountability
At the heart of the High Court’s decision is the failure of the Kenyan National Assembly to ensure “meaningful” public participation during the legislative process. The court, led by Justice Chacha Mwita, found that the six memoranda received and consultations with handpicked stakeholders did not meet constitutional standards. Article 10 and 118 of Kenya’s Constitution mandate public involvement in decision-making processes, but the exclusionary nature of the legislative process for this Act rendered it unconstitutional.
The judgment shows the importance of inclusivity and transparency in governance, particularly when dealing with essential services or national assets. Public participation is not only a legal requirement but also a cornerstone for justice, giving citizens the power to influence decisions that affect their livelihoods.
In the context of water privatization, the ruling resonates strongly with global movements resisting the commodification of water resources in Africa, Latin America, Europe and East Asia. Just as the court held that meaningful public participation must be honored in economic matters, water justice advocates can argue that decisions to privatize water resources must also meet high standards of transparency, accountability, and inclusivity.
Implications for African Commonwealth Nations
Many African Commonwealth nations have similar legal structures that enshrine public participation and governmental accountability. The lessons from Kenya’s ruling are particularly relevant in countries where IMF-backed privatization programs or neoliberal economic policies are being introduced. These policies focus on privatizing key national assets, including water utilities, which undermines people’s access to affordable water and leads to the exclusion of vulnerable communities.
For example, Ghana, South Africa, and Nigeria have faced similar pressures to privatize water resources under the guise of improving efficiency and reducing financial burdens on the state. However, the Kenyan ruling shines a light on the potential unconstitutionality of such moves if they bypass public participation or violate constitutional mandates.
Protecting Water as a Public Good
The Kenyan ruling also reinforces the principle that certain public assets should remain in the hands of the state for reasons of national security and public welfare. Justice Mwita declared the privatization of the Kenyatta International Convention Centre unconstitutional, citing its status as a national monument. Similarly, critical public services like water provision must be regarded as national assets that cannot be sold off without meaningful public engagement and adequate protection of human rights.
Across Africa and the world, privatization of water resources has often resulted in higher costs, exclusion of the poor, and degraded service delivery. The situation in South Africa, where low income communities in cities like Cape Town continue to grapple with high water bills and flow restriction, serves as a cautionary tale. The use of water scarcity as a justification for the privatization of services during times of crisis intensifies inequality, with poor communities bearing the brunt.
From a water justice perspective, Kenya’s ruling provides a basis for arguing that water, much like national monuments or strategic industries, must be protected by law as a public good. This ensures that access to water remains a fundamental right and is not subject to the profit-driven motives of private companies.
Global Lessons for Water Rights and Governance
The implications of Kenya’s ruling go beyond African borders, offering lessons to the global community about the risks of privatizing essential services, particularly water. In many countries, including those under the influence of IMF or World Bank programs, privatization of water utilities has been met with widespread resistance. Cities like Paris and Buenos Aires have remunicipalised their water services after disastrous privatization experiments, recognizing that water should be managed as a public trust.
Kenya’s court ruling also emphasizes an important role of litigation as an important advocacy tool in safeguarding public assets and human rights. Water justice movements across the world can draw from this decision to challenge privatization schemes that undermine public access to essential services.
The Intersection of Law, Water Justice, and Human Rights
Kenya’s High Court ruling on the Privatisation Act 2023 is a significant victory for public participation, accountability, and the protection of national assets. For water justice advocates, it highlights the importance of using constitutional rights as a tool to resist the privatization of vital resources. Across Africa and beyond, similar legal frameworks provide a foundation for communities to challenge attempts to commodify water and other essential services.
The decision offers a powerful lesson, in a world where water inequality is on the rise, protecting water as a public good is not just a matter of policy – it is a matter of justice, human rights, and the survival of future generations. African nations and global water movements must heed this ruling and ensure that the human right to water remains at the forefront of governance and public service.
By: Leonard Shang-Quartey, BPP, Africa Organiser