analysisBy Albert Muriuki
Justice Joseph Nyamu yesterday delivered a landmark ruling that enhanced the doctrine of separation of powers that is at the heart of the Kenyan Constitution.
In his ruling on a case brought before the High Court by three legislators seeking to stop the sale of Safaricom, Justice Nyamu said the Judiciary had no powers to compel the Executive branch of government make a law operational once it has been passed by Parliament.
This means that Finance minister Amos Kimunya is free to sell Safaricom under the existing laws-that are in force.
Mr Kimunya has been under political pressure over his delay to make the Privatization Act -- which has received presidential assent -- operational and his Parliamentary colleagues had sued to stop Treasury from privatising this key subsidiary of Telkom Kenya that is expected to fetch Sh33 billion on the Nairobi Stock Exchange.
Anyang Nyong'o, one of the plaintiffs, argued that the minister was violating the doctrine of separation of powers by not bringing the Privatization Act into force.
"To my mind this argument is not tenable," said Justice Nyamu, as he stated that parliament gave the minister the discretion to determine or appoint a commencement date.
The Judge said that parliaments all over the world do this in situations where there are issues to be sorted out or arrangements, which must be put in place in order to have an effective implementation and enforcement of the law.
"This is purely an executive function. This is obviously the case here and the Minister for Finance has demonstrated that there are some necessary steps which must be taken before he appoints a date," said Justice Nyamu.
According to the Court, the minister was performing an executive function, which is protected by the Constitution.
"Parliament can only take that discretion away by enacting another law to provide for a commencement date," he said.
Giving a comparative analysis with the Constitution of the United States, the Court noted that the Kenyan Constitution does not provide for a rigid separation of powers, since in Kenya, the President is a both the head of the Executive and a member of Parliament.
"With respect the Minister has not therefore violated section 30 of the Constitution in that he has not legislated at all," said justice Nyamu, "Pending the coming into force of a law, the Executive organ of State must continue with its executive function as per the current law."
The court held that the applicable law in respect of the 25 per cent shares in Safaricom was under five laws, the Constitution, the Permanent Secretary to the Treasury Incorporation Act, the Companies Act, the Capital Markets Act and the Procurement of Assets Disposal Act 2005.
Under the Constitution, the Court held that the sale was being done in exercise of the Executive power vested in the Ministry of Finance.
Permanent Secretary to the Treasury, under State Corporations Act allows the Treasury to buy and sell assets, both movable and immovable on behalf of the public, the court held, stating that the Permanent Secretary Treasury had not been joined in the proceedings and the public entity which owns the shares, Telkom Kenya Limited, was also not enjoined.
"The Permanent Secretary to the Treasury Incorporation Act clearly provides that the Permanent Secretary is a Corporation capable of suing and being sued. The Minister is only concerned with policy and the necessary check on issues of policy is done by Parliament," he said.
Failure to join Telkom to the suit as described in the Act was "a fatal defect to any orders sought as regards shares," said justice Nyamu.
Concerning the date of commencement of the Privatization Act, the court ruled that was a matter of policy, which is well within the executive powers vested in the Executive under the Constitution and the Permanent Secretary to the Treasury Incorporation Act.
"Judicial review jurisdiction recognizes the need of good public administration and is not directed at executive policy unless, it is clearly demonstrated that an Act of Parliament is being violated. It has not been shown how the Minister violated the Act," said Justice Nyamu.
The Court held that the powers of government have been allocated by the Constitution to each organ as set out in the Constitutional provisions. Similarly checks and balances must be clearly spelt out in the law.
"The powers so alienated to the three organs are generally inalienable-which means one organ cannot transfer its function to another or exercise a power not allocated to it under the Constitution," said justice Nyamu.
"The power or discretion to bring the Privatization Act into operation was delegated to the Minister by Parliament and the Minister is exercising powers as a member of the Executive."