BY SAM ALFAN.
A petition has been filled challenging a move by Treasury cabinet secretary Ukar Yattani vesting public properties to the Kenya Development Corporation Limited (KDCL).
In the petition, activist Okiya Omtatah is questioning the constitutional and legal validity of the vesting order published by CS Yattani in a legal notice on June 11.
Omtatah says Yattani’s move to strip assets worth billions of shillings from the Industrial and Commercial Development Corporation, the IDB Capital Limited, and the Tourism Finance Corporation, and vest them in KDCL, a private company is unconstitutional.
He arguest hat the Cabinet Secretary does not have the powers to remove assets from parastatals that are established by their own Acts of Parliament.
The Activist says only Parliament can do so by amending or repealing the Acts.
“I am apprehensive that by transferring public assets to a private company, the Cabinet Secretary has set the stage for the massive looting of these assets,” argues Omtatah.
He seeks the court to declare that the incorporation of the KDCL by the CS without public participation is invalid unlawful, arbitrary, whimsical, unreasonable and therefore, unconstitutional.
“A declaration be and is hereby issued that the Kenya Development Corporation Limited, a private company limited by shares, is not the entity anticipated to be created by the merger of the Tourism Finance Corporation, the IDB Capital Limited, and the Industrial and Commercial Development Corporation,” Omtatah seeks in one of the prayers.
He also wants the court to declare that under Kenyan law, parastatals can only be privatised through the Privatisation Commission and the CS therefore acted against the law.
It is his argument that the Treasury Cs has no capacity in law to appoint Board members for any state corporation by invoking powers reserved exclusively for the President under Section 7(3) of the State Corporations Act.
He stated in the petition that the CS can only appoint the independent members of the KDCL pursuant to Articles 79(c) and 80 of the corporation’s articles of association.
Omtatah also seeks the court to declare that the Tourism Finance Corporation and the ICDC can only be merged through an Act of Parliament, which will establish the new entity out of the merger and repeal the Industrial Development Corporation Act (CAP. 445), and also Sections 75 to 86 and the Eighth Schedule of the Tourism Act No.28 of 2011.
