Safaricom deal: State has shot itself in the foot again

 High Court's declaration of the government's sale of a 15 per cent stake in Safaricom as null and void is yet another setback for the Kenya Kwanza administration.[File, Standard]

The High Court's declaration of the government's sale of a 15 per cent stake in Safaricom as null and void is yet another setback for the Kenya Kwanza administration. It is a pointed reminder that the Executive cannot treat constitutional processes as an inconvenience to be worked around once a deal is politically or financially attractive.

Justices Francis Gikonyo, Roselyne Aburili and Tabitha Ouya found that the government had concluded a share purchase agreement with Vodafone Group at Sh34 per share, and a related dividend rights agreement, on December 3, 2025, before the underlying policy and parliamentary approval processes were even complete.

The court also found the Sh204.3 billion in proceeds was never tied to specific, costed projects. Depositing the money in the National Infrastructure Fund, the judges held, did not amount to ring-fencing it for any defined purpose. Parliamentary approval, they ruled, could not cure these defects, particularly where public participation was inadequate, and material information was misrepresented or withheld.

This is not the first time. The government has repeatedly found itself on the losing end of litigation for the same underlying failure; proceeding as though public participation is a formality to be satisfied after the fact, rather than a substantive requirement to be honoured before decisions are locked in.

The Finance Act 2023 was found unconstitutional at the High Court and Court of Appeal over housing levy and inadequate consultation, before the Supreme Court ultimately reversed that finding. The proposed 30-year lease of Jomo Kenyatta International Airport to India's Adani Group was suspended by the High Court after the Kenya Human Rights Commission and the Law Society of Kenya argued the deal was concluded without proper public participation or transparency. It was eventually cancelled altogether amid sustained public pressure and litigation.

Article 10 of the Constitution lists public participation among the national values and principles of governance binding on all State organs, at every level, in every policy and legislative process. It is not a discretionary courtesy extended only when convenient. Article 232 similarly enshrines public participation as a principle of public service. These are not abstract ideals; they are enforceable obligations, as repeatedly affirmed by the courts.

Each time the government skips this step, taxpayers absorb the cost in stalled projects, reversed transactions, and legal fees defending the indefensible. The Safaricom ruling should be seen as more than a mere embarrassment. It is a pattern that demands correction.