Court Faults Government Over Lack of Transparency in Safaricom Share Divestiture

A three-judge bench has faulted the Kenyan government over the partial divestiture of its shares in Safaricom, ruling that the process was conducted without adequate public participation and involved the concealment of key documents and material information.

The court found that the lack of transparency hindered the Cabinet’s ability to objectively evaluate the proposed divestiture in accordance with constitutional requirements.

Government Accused of Withholding Key Information

The judges established that the government failed to disclose the identity of the proposed buyer and made misrepresentations while withholding material information relating to the sale.

“We accordingly find that the Government of Kenya engaged in unexplained obscurity on the identity of the proposed buyer, made misrepresentation and concealed material information in respect of the partial divestiture throughout the process,” the court ruled.

The finding raises significant questions about the government’s handling of public assets and its compliance with constitutional principles of transparency and accountability.

Court Emphasises Meaningful Public Participation

The bench further held that withholding or concealing material information during a public participation process undermines the constitutional obligation to ensure 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 judges stated.

The court emphasised that public participation must go beyond a procedural requirement and provide citizens with a genuine opportunity to influence decisions affecting public resources.

Public Must Be Properly Informed

According to the judges, meaningful public participation requires the government to provide citizens with sufficient and accurate information to enable effective engagement in decisions involving public assets.

The ruling underscores the importance of openness, accountability and access to material information when the government undertakes major transactions involving state-owned assets.

The court’s findings could have broader implications for future government divestitures and other public asset management decisions, particularly where public participation and disclosure of critical information are concerned.