Privatization Act - as Plain Text by MWakili

LAWS OF KENYA The PrivaTizaTion acT CHAPTER 485 C Revised Edition 2009 (2005) Published by the National Council for Law Reporting with the Authority of the Attorney-General www.kenyalaw.org 2 CAP.

485C Privatization [Rev.

2009 CHAPTER 485 C THE PRIVATIZATION ACT, 2005 ARRANGEMENT OF SECTIONS PART I PRElImInARy 1Short title and commencement.

2Denitions.

PART II THE PRIvATIzATIon CommIssIon 3Establishment of the Commission.

4Functions of Commission.

5Composition of Commission.

6Term of ofce.

7Resignation.

8Removal.

9Remuneration of members.

10Appointment of Executive Director.

11Appointment of employees.

12Terms and conditions of service of employees.

13Conduct of business.

14Funding of Commission.

15Audit.

16Annual report.

PART III THE PRIvATIzATIon PRogRAmmE 17Establishment of privatization programme.

18Benets of privatization programme.

19Commission may review assets, etc.

of public entities.

20Prescribed non-privatization transactions to be included.

21Only Commission to implement programme.

22Privatizations outside programme.

PART Iv PRIvATIzATIon PRoCEss 23Privatization proposals by Commission.

24Contents of privatization proposal.

25Methods of privatization.

26Commission to implement proposed privatization.

27Steering committees.

28Privatization to be competitive to obtain fair price.

29Eligible investors in privatizations.

30Publication of notice of proposed privatization.

31Valuation required for each privatization.

32Information to Commission about asset, etc.

to be privatized.

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485C 3 33Restrictions, etc.

on state corporations scheduled for privatization.

34No credit, etc.

on sale of shares.

35Regulation of monopolies.

36Notice of proposed transfer.

37Objections and appeals procedure.

38Limits on when agreement may be signed.

39Countersigning of agreement.

40Special rule for public offering of shares.

41Publication of notice after agreement made.

42Commission records.

43Part only applies to privatizations in programme.

PART v PRIvATIzATIon APPEAls TRIbunAl 44Establishment and composition of Tribunal.

45Secretary.

46Allowances and expenses.

PART vI mIsCEllAnEous 47Use of privatization proceeds.

48Commission to keep information condential.

49Offences - improper disclosure of information.

50Offences - lying to or misleading ofcials.

51Regulations.

52Transitional provisions.

First Schedule - Business and Affairs of the Commission.

Second Schedule - Procedure for Objections and Appeals.

Third Schedule - Transitional Provisions.

www.kenyalaw.org 4 CAP.

485C Privatization [Rev.

2009 CHAPTER 485 C THE PRIVATIZATION ACT, 2005 Date of Assent: 13th October, 2005 Date of Commencement: 1st January, 2008 An Act of Parliament to provide for the privatization of public assets and operations, including state corporations, by requiring the formulation and implementation of a privatization programme by a Privatization Commission to be established by this Act and for related purposes ENACTED by the Parliament of Kenya as follows: PART I PRElImInARy Short title and 1.

This Act may be cited as the Privatization Act, 2005 and shall commencement.

come into operation on 1st January 2008.

L.N.

397/2007 Denitions.

2.

(1) In this Act, unless the context otherwise requires Commission means the Privatization Commission established under section 3; Executive Director means the Executive Director of the Commission appointed under section 10; Minister means the minister responsible for nance; privatization means a transaction or transactions that result in a transfer, other than to a public entity, of any of the following (a) assets of a public entity including the shares in a state corporation; (b) operational control of assets of a public entity; (c) operations previously performed by a public entity; privatization programme means the programme provided for under section 17; privatization proposal means a proposal provided for under section 23; www.kenyalaw.org Rev.

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485C 5 public entity includes a government department, a state corporation or a local authority; shares means the shares in the share capital of a state corporation and includes share options; state corporation means a state corporation as dened in the State Corporations Act; Cap.

446.

Tribunal means the Privatization Appeals Tribunal established under section 44 of this Act.

(2) For greater certainty, the assets of a fund established by law and held by or vested in a public entity are assets of the public entity for the purposes of this Act.

PART II THE PRIvATIzATIon CommIssIon 3.

The Privatization Commission is hereby established as a body Establishment of the corporate.

Commission.

4.

The Commission shall Functions of the Commission.

(a) formulate, manage and implement the privatization programme; (b) make and implement specic proposals for privatization in accordance with the privatization programme; (c) carry out such other functions as are provided for under this Act; and (d) carry out such other functions as the Commission consid- ers advisable to advance the privatization programme.

5.

(1) The Commission shall comprise the following members Composition of Commission.

(a) a chairman appointed by the President; (b) the Attorney General; (c) the Permanent Secretary to the Treasury; (d) seven members, not being public ofcers, appointed by the Minister and approved by the relevant committee of Parliament, by virtue of their expertise in such matters as will ensure that the Commission achieves its objec- www.kenyalaw.org 6 CAP.

485C Privatization [Rev.

2009 tives; and (e) the Executive Director.

(2) No person shall be appointed as chairman unless he is a person of high integrity and has a university degree and at least ten years of high level experience in either the public or private sector.

Term of ofce.

6.

The Chairman or a member of the Commission appointed under paragraph (d) of section 5(1) shall hold ofce for a period of three years and shall be eligible for reappointment for one more term.

Resignation.

7.

(1) The Chairman may resign by written resignation addressed to the President.

(2) A member appointed under paragraph (d) of section 5(1) may resign by written resignation addressed to the Minister.

Removal.

8.

(1) The President may remove the Chairman, and the Minister may remove a member appointed under paragraph (d) of section 5 (1), on a ground set out in subsection (2).

(2) The grounds referred to in subsection (1) are if the Chairman or member (a) is absent without reasonable excuse from three consecu- tive meetings of the Commission of which he has had notice; (b) becomes an undischarged bankrupt; (c) is convicted of a criminal offence; (d) is incapacitated by reason of prolonged physical or mental illness from performing his duties as the Chairman or member; or (e) is otherwise unable or unt to discharge the functions of his ofce.

Remuneration of 9.

The Commission shall pay the members of the Commission members.

such remuneration and allowances as are determined by the Minister Cap.

446.

in consultation with the State Corporations Advisory Committee established under the State Corporations Act.

Appointment of 10.

(1) The Minister shall, through a competitive process, appoint Executive Director.

an executive director of the Commission who shall be the chief executive www.kenyalaw.org Rev.

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485C 7 ofcer of the Commission and who shall, in addition, perform such duties as the Commission shall assign to his ofce.

(2) No person shall be appointed as Executive Director unless he possesses experience and expertise in either nancial management, banking or economics and in addition has experience and expertise in matters of public policy.

.

11.

(1) The Commission shall appoint such other employees, Appointment of subordinate to the Executive Director; as it considers necessary to assist employees.

the Executive Director in discharging his duties and responsibilities.

(2) The Commission may delegate to the Executive Director the appointment of employees of the Commission of such ranks as the Commission shall specify.

12.

The Minister shall determine, in consultation with the Terms and conditions State Corporations Advisory Committee established under the State of service of Corporation Act, the terms and conditions of service of the employees employees.

of the Commission, including the Executive Director.

Cap.

446.

13.

The business and affairs of the Commission shall be conducted Conduct of business, in accordance with the First Schedule but, subject to the Schedule, the etc.

Commission may regulate its own procedures.

14.

The Commission shall be funded from the following Funding of Commission.

(a) such amounts as are appropriated by Parliament; and (b) such grants and donations as the Minister may ap- prove.

15.

The Commission shall be audited in accordance with the Audit.

Public Audit Act, 2003.

16.

(1) The Commission shall cause an annual report to be Annual report.

prepared for each nancial year.

(2) Without limiting what may be included in the annual report, the annual report shall include (a) the audited nancial statements of the Commission; (b) where a state corporation was privatized during the year, a statement of the assets and liabilities of the state corpo- ration and the proceeds from the privatization; and www.kenyalaw.org 8 CAP.

485C Privatization [Rev.

2009 (c) such information as the Minister may direct.

(3) The Minister shall lay the annual report before the National Assembly not later than seven days after the National Assembly rst meets after the Minister has received the report.

PART III THE PRIvATIzATIon PRogRAmmE Establishment 17.

(1) There shall be a privatization programme.

of privatization programme.

(2) The privatization programme shall be formulated by the Commission and approved by the Cabinet.

(3) The privatization programme shall be published in the Gazette.

(4) The privatization programme may be amended and subsections (2) and (3) shall apply with respect to any such amendments.

Benets of 18.

(1) In formulating the privatization programme the privatization programme.

Commission shall have regard to the desired benets of the programme as described in subsection (2).

(2) The desired benets of the privatization programme referred to in subsection (1) are the following (a) the improvement of infrastructure and the delivery of public services by the involvement of private capital and expertise; (b) the reduction of the demand for government resourc- es; (c) the generation of additional government revenues by receiving compensation for privatizations; (d) the improvement of the regulation of the economy by reducing conicts between the public sectors regulatory and commercial functions; (e) the improvement of the efciency of the Kenyan econo- my by making it more responsive to market forces; (f) the broadening of the base of ownership in the Kenyan economy; and www.kenyalaw.org Rev.

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485C 9 (g) the enhancement and development of the capital mar- kets.

19.

(1) The Commission may review the assets and operations Commission may of a public entity for the purposes of determining whether to include review assets, etc.

of a privatization relating to the public entity in the privatization public entities.

programme.

(2) A review described in subsection (1) may be made at the request of the Minister responsible for the public entity or on the Commissions own initiative.

20.

The Minister may, with the approval of the Cabinet, make Prescribed non- regulations requiring the Commission to include, in the privatization privatization programme, a transaction that is not a privatization and this Act transactions to be shall apply with respect to such a transaction as though it were a included.

privatization.

21.

The Commission shall have the exclusive authority to manage Only Commission and implement the privatization programme.

to implement 22.

(1) A privatization that is not included in the privatization programme.

programme may be implemented and managed by the responsible public Privatizations outside entity, subject to subsection (2).

programme.

(2) A privatization that is within one of the following classes shall not be implemented unless it is included in the privatization programme (a) the transfer of a public entitys interests in a state cor- poration or other corporation; (b) the transfer of the operational control of a state corpora- tion or a substantial part of its activities; (c) any other privatization prescribed by regulation.

PART Iv PRIvATIzATIon PRoCEss 23.

(1) For each privatization included in the privatization Privatization programme the Commission shall make specic proposal for proposals by privatization.

Commission.

(2) The Minister shall present a report on the privatization proposals approved by the Cabinet to the relevant committee of Parliament.

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485C Privatization [Rev.

2009 Contents of 24.

Without limiting what else may be included, a privatization privatization proposal shall set out the following proposal.

(a) for the assets or operations being proposed for priva- tization (i) the purpose of the establishment or existence of the assets or operations; (ii) the extent to which the purpose has been met by the assets or operations including any inadequa- cies in meeting that purpose; (iii) the rights or other entitlements and resources that have been provided to meet the purpose; (iv) recommendations for continuing to meet the purpose; and (v) if the asset is a state corporation, the nancial position of the corporation; (b) the recommended method of privatization; (c) the estimated costs of implementing the proposed privatization; (d) recommendations for dealing with the employees di- rectly affected by the proposed privatization, including dealing with any benets they might be owed.

(e) the benets to be gained from the proposed privatiza- tion; (f) a work plan for the proposed privatization;.

(g) information regarding any written law, the repeal, amendment or enactment of which will be necessary for the proposed privatization to be carried out; and (h) proposals on how Kenyans are to be encouraged to participate in the transaction.

Methods of 25.

Subject to section 28 and 29, the method of privatization may privatization.

be any of the following- (a) public offering of shares; www.kenyalaw.org Rev.

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485C 11 (b) concessions, leases, management contracts and other forms of public-private partnerships; (c) negotiated sales resulting from the exercise of pre- emptive rights; (d) sale of assets, including liquidation; (e) any other method approved by the Cabinet in the ap- proval of a specic privatization proposal.

26.

(1) The Commission shall implement each privatization Commission to proposal approved by the Cabinet.

implement proposed privatization.

(2) The Commission may vary the timing of the steps or activities provided for in the work plan.

27.

(1) For each privatization, there shall be a steering committee Steering committees.

to implement the privatization on behalf of the Commission subject to any directions of the Commission.

(2) A steering committee shall comprise the following members (a) the members of the Commission described in paragraphs (b), and (c) of section 5 (1); (b) the Permanent Secretary of the ministry with responsibil- ity over the asset or service being privatized; and (c) such members of the Commission as the Commission species.

28.

The Commission shall conduct a privatization in an open and Privatization to be competitive way, subject to any pre-existing legal rights, with a view competitive to obtain to ensuring that the compensation received represents the fair value of fair price.

what is privatized.

29.

(1) Both Kenyans and non-Kenyans are eligible to participate Eligible investors in in any privatization.

privatization.

(2) Notwithstanding the provisions of subsection (1), the Minister may direct the commission to (a) limit participation in any privatization to Kenyans; or (b) ensure that there is a specied minimum level of par- www.kenyalaw.org 12 CAP.

485C Privatization [Rev.

2009 ticipation by Kenyans in any privatization.

(3) For greater certainty, subsection (1) does not affect the application of any other law that may impose restrictions on non- Kenyans.

(4) Assets, operational control or operations being transferred in a privatization may not be transferred to a public entity.

(5) Subsection (4) does not prevent a social security fund, compensation fund, superannuation fund, insurance fund or endowment fund under public control from purchasing shares for the benet of its contributors.

Publication of 30.

(1) After a privatization proposal is approved by the Cabinet notice of proposed the Commission shall publish a notice of the proposed privatization.

privatization.

(2) The notice shall be published in at least two newspapers with a national circulation and the notice shall be published at least twice with there being at least seven days between the rst and last publication.

(3) Without limiting what else may be included in the notice, the notice shall set out the following (a) a description of what is to be privatized; and (b) a description of the method of privatization including, if applicable, any deadlines and closing dates.

Valuation 31.

(1) For each privatization, a valuation shall be performed to required for each assist the Commission in implementing the privatization proposal.

privatization.

(2) The valuation shall be performed by a qualied person or persons appointed by the Commission.

Information to 32.

(1) If the privatization programme provides for the privatization Commission about of assets or operations, the public entity with control over those assets asset, etc.

to be or operations shall provide the Commission with such information as privatized.

the Commission requests.

(2) If the public entity referred to in subsection (1) is a government department, the Permanent Secretary with responsibility for that department shall be responsible for ensuring that the information required under subsection (1) is provided.

(3) If the public entity referred to in subsection (1) is a local www.kenyalaw.org Rev.

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485C 13 authority, the Permanent Secretary of the ministry with responsibility for local government shall be responsible for ensuring that the information required under subsection (1) is provided.

(4) If the public entity referred to in subsection (1) is a state corporation, the board of directors of the state corporation shall be responsible for ensuring that the information required under subsection (1) is provided.

33.

(1) This section applies with respect to a state corporation Restrictions, etc.

on if state corporations (a) the privatization programme provides for the privatiza- scheduled for tion of the state corporation or assets or operations of privatization.

the state corporation; and (b) all the shareholders of the state corporation, if any, are public entities.

(2) This section begins to apply to a state corporation upon the publication, under section 17, of the privatization programme or, if the privatization of the state corporation is provided for under an amendment to the privatization programme, upon the publication, under section 17, of that amendment.

(3) A state corporation to which this section applies shall carry out any directions of the Commission with respect to the preparation of the state corporation or its assets for privatization or with respect to the implementation of the privatization and, without limiting the generality of the foregoing, such directions may include (a) directions that the state corporation pay such costs specied by the Commission as are incidental to the privatization of the state corporation, including costs incurred by the Commission; (b) directions that the state corporation disclose, to the Com- mission, to the general public or to identied persons, as specied by the Commission, such information as the Commission species, subject to subsection (4) (d); or (c) if an audit of the accounts of the state corporation is overdue, directions that the state corporation prepare the necessary accounts within the time limit specied by the Commission and co-operate fully with the auditors.

(4) A state corporation to which this section applies shall not - www.kenyalaw.org 14 CAP.

485C Privatization [Rev.

2009 (a) allow the assets of the state corporation to be dissi- pated; (b) undertake any new capital investment unless documenta- tion for the investment is prepared for the Commission and the Commission is satised that (i) the investment is necessary to maintain the operations of the state corporation; and (ii) the investment will have a positive effect on the net worth of the state corporation within a period of two years or such shorter period as the Com- mission species; (c) incur any liabilities, other than in the ordinary course of business, without the prior written approval of the Commission; or (d) disclose information, other than publicly, if there is a rea- sonable risk that the disclosure would give an advantage to a person who might compete in the privatization.

(5) A state corporation to which this section applies shall (a) keep up to date business records and books of ac- counts; (b) maintain an up to date register of xed assets; and (c) document all legal and other obligations of the state corporation.

(6) The Executive Director or his nominees may attend any meeting of the board of directors of a state corporation to which this section applies or of any committee of the board of directors.

No credit, etc.

on sale 34.

If shares are sold as part of a privatization, neither the of shares.

Government nor the public entity that sells the shares shall extend credit or provide nancing for the purchase of the shares.

Regulation of 35.

If a privatization would otherwise result in an unregulated monopolies.

monopoly the Commission shall ensure that the agreement to give effect to the privatization provides for the regulation, under the agreement, of the monopoly.

Notice of proposed 36.

When, for a privatization, it is determined to whom the assets, transfer.

operational control or operations are to be transferred and on what www.kenyalaw.org Rev.

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485C 15 terms, the Commission shall publish a notice in the Gazette of what has been determined.

37.

The Second Schedule shall apply with respect to objections Objections and and appeals relating to what has been determined, as published under appeals procedure.

section 36.

38.

(1) An agreement to give effect to a privatization shall not Limits on when agreement may be be signed until the time limit for ling an objection under the Second signed.

Schedule has elapsed.

(2) If an objection has been led with the Commission, an agreement to give effect to the privatization shall not be signed until the Commission has made a decision with respect to the objection and (a) the time for ling a notice of appeal has expired without such a notice being led; or (b) the Tribunal has disposed of any appeal.

39.

(1) An agreement to give effect to a privatization shall not Countersigning of bind a public entity unless it is signed or countersigned by the Permanent agreement.

Secretary to the Treasury.

(2) This section does not apply, with respect to an agreement to sell an asset as part of a liquidation if the sale price of the asset is less than the amount prescribed by regulation or, if no such amount is prescribed, ten million shillings.

40.

Sections 36, 37, 38 and 39 shall not apply with respect to Special rule for a privatization if the method of privatization is a public offering of public offering of shares.

shares.

41.

(1) After an agreement to give effect to a privatization becomes Publication of notice binding on the appropriate public entity, the Commission shall promptly after agreement publish a notice of the privatization in the Gazette.

made.

(2) The notice shall set out the following (a) a description of the assets or operations being priva- tized; (b) a description in summary form of the transaction used to give effect to the privatization; (c) the names and addresses of the persons to whom the assets, operational control or operations are being transferred; and www.kenyalaw.org 16 CAP.

485C Privatization [Rev.

2009 (d) such other information as the Commission considers appropriate.

(3) If the transaction to be used to give effect to the privatization is a public offering of shares, paragraph (c) of subsection (2) shall not apply.

Commission records.

42.

(1) The Commission shall keep and maintain proper records for each privatization.

(2) The Minister may make regulations governing the records required under subsection (1).

Part only applies 43.

This Part applies only with respect to a privatization that is to privatizations in included in the privatization programme.

programme.

PART v PRIvATIzATIon APPEAls TRIbunAl Establishment and 44.

(1) The Privatization Appeals Tribunal is hereby Composition of established.

Tribunal.

(2) The Tribunal shall consist of the following members (a) a chairman, appointed by the President, who shall be qualied to be appointed as a judge of the High Court; and (b) two other members, appointed by the Minister, each of whom shall be a person with knowledge or experience in privatizations or management.

(3) A person is not qualied to be appointed as a member of the Tribunal if the person is an employee or member of the Commission or a member of the public service.

(4) A member shall hold ofce (a) in the case of the Chairman, for a period of ve years; and (b) in the case of another member, for a period of three years.

(5) A member of the tribunal may be reappointed but may not serve more than two terms.

(6) A member of the Tribunal may resign by written resignation www.kenyalaw.org Rev.

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485C 17 addressed to (a) in the case of the Chairman, the President; and (b) in the case of another member, the Minister.

(7) The President may remove the Chairman, and the Minister may remove any of the members of the Tribunal, on the following grounds (a) the Chairman or member becomes an undischarged bankrupt; (b) the Chairman or member is convicted of a criminal offence; (c) the Chairman or member is incapacitated by reason of prolonged physical or mental illness from performing his duties; or (d) the member is otherwise unable or unt to discharge the functions of his ofce.

45.

The Attorney General shall designate a public ofcer to be Secretary.

the secretary to the Tribunal.

46.

(1) The members of the Tribunal shall be paid such allowances Allowances and and expenses as are determined by the Minister.

expenses.

(2) The expenses of the Tribunal, including the allowances and expenses of the members of the Tribunal, shall be paid by the Government.

PART vI mIsCEllAnEous 47.

(1) The proceeds from the sale of direct Government equity Use of privatization holding shall be paid into the Consolidated Fund.

proceeds.

(2) The proceeds from the sale of a state corporations equity holding shall be deposited in a special interest bearing account established specically for that state corporation in order to protect the erosion of the balance sheet of the state corporation.

(3) Subject to the approval of the Minister, the privatization proceeds referred to in subsection (2) shall be used- (a) to liquidate the debts of the state corporation; (b) to pay the costs of nancial and organizational restruc- www.kenyalaw.org 18 CAP.

485C Privatization [Rev.

2009 turing of the state corporation; (c) to pay for capital investments by the state corporation.

(4) Any surplus under subsection (3) shall be paid into the Consolidated Fund.

Commission to 48.

The Commission shall keep information acquired by it keep information condential and shall disclose such information only to the extent it considers necessary for the proper performance of its functions.

condential.

Offences - improper 49.

(1) No member, employee or agent of the Commission shall disclosure of disclose information acquired under this Act except information.

(a) in the course of his duties under this Act; or (b) with the written consent of the Commission.

(2) No person who receives information in contravention of subsection (1) shall disclose or publish the information.

(3) A person who contravenes subsection (1) or (2) is guilty of an offence and is liable, on conviction, to a ne not exceeding two hundred thousand shillings or to imprisonment for a term not exceeding one year or to both.

Offences - lying to or 50.

(1) No person shall knowingly lie to or mislead a person carrying out a duty or function under this Act.

misleading ofcials.

(2) A person who contravenes subsection (1) is guilty of an offence and is liable, on conviction, to a ne not exceeding two hundred thousand shillings or to imprisonment for a term not exceeding one year or to both.

Regulations.

51.

The Minister may make regulations generally for the better carrying out of the provisions of this Act.

Transitional 52.

The provisions of the Third Schedule shall apply.

provisions.

FIRST SCHEDULE S.

13 BUSINESS AND AFFAIRS OF THE COMMISSION Denitions.

1.

In this Schedule immediate family member in relation to a person means the persons spouse, child, parent, brother, sister, grandchild or www.kenyalaw.org Rev.

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485C 19 grandparent.

2.

(1) Meetings of the Commission shall be held at such time Meetings of the and places as the Commission or the Chairman from time to time Commission.

appoints.

(2) The Commission shall meet at least four times in every calendar year and not more than three months shall elapse between the date of one meeting and the date of the next meeting.

(3) The quorum for the conduct of business at a meeting of the Commission shall be eight members of the Commission.

(4) A meeting of the Commission shall be presided over by (a) the Chairman; or (b) in the absence of the Chairman, such member as the members present may elect for the purpose of that meeting.

(5) In the event of an equality of votes on a question before the Commission, the person presiding at the meeting shall have the casting vote in addition to his deliberative vote.

3.

A member described in section 5(1) may designate a Alternates for certain representative to attend a meeting of the Commission or of a committee members.

of the Commission in the members absence.

4.

(1) The Executive Director shall be the Secretary to the Executive Director is Commission.

Secretary.

(2) The Executive Director or such other employee of the Commission as the Executive Director may designate shall attend each meeting of the Commission or a committee of the Commission.

5.

The Executive Director shall ensure that minutes are kept Minutes.

of every meeting of the Commission and of the committees of the Commission.

6.

(1) The Commission may for the purpose of performing its Commission to functions under this Act establish committees and delegate to any such appoint committees, committee such of its functions as it considers advisable.

etc.

(2) The Commission may appoint persons who are not members of the Commission as members of a committee established under subparagraph (1).

www.kenyalaw.org 20 CAP.

485C Privatization [Rev.

2009 Attendance at 7.

(1) This paragraph applies with respect to meetings of the meeting of non- Commission and meetings of committees of the Commission.

members.

(2) The Commission may invite a person to attend a meeting.

(3) If a state corporation, asset or service is to be discussed at a meeting, the Commission shall invite the Permanent Secretary of the ministry with responsibility for the state corporation, asset or service, or the Permanent Secretarys nominee, to attend the meeting.

(4) The Minister may nominate a public servant to attend a meeting.

(5) A person invited or nominated under this paragraph may participate in the meeting, subject to paragraph 8, but shall not have a vote.

Disclosure of 8.

If a person is present at a meeting of the Commission or of interest, Commission any committee of the Commission and the person or his immediate meetings.

family member or his professional or business partners, are directly or indirectly interested in a private or professional capacity in a matter that is the subject of consideration at the meeting, the person shall as soon as is practicable after the commencement of the meeting disclose such interest and shall not, unless the Commission or the committee otherwise directs, take part in any consideration or discussion of, or vote on, any question touching on such matter.

Disclosure of 9.

(1) A member of the Commission, an employee of the interest, generally.

Commission or a consultant to the Commission who is, or whose immediate family member is, directly or indirectly interested in a private, professional or ofcial capacity in any matter relating to the privatization programme shall disclose such interest.

(2) A disclosure of the interest by an employee or consultant shall be made to the Executive Director who shall take such action as he considers appropriate and submit a report thereon to the Commission.

(3) A disclosure of interest by the Executive Director or a member of the Commission shall be made to the Commission which shall take such action as it considers appropriate.

Oath of secrecy.

10.

The following shall, upon assumption of his ofce, take such oath of secrecy as may be prescribed by regulation- (a) a member of the Commission; (b) a member of a committee of the Commission; www.kenyalaw.org Rev.

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485C 21 (c) an employee of the Commission; and (d) a consultant in the service of the Commission.

SECOND SCHEDULE S.

37 PROCEDURE FOR OBJECTIONS AND APPEALS 1.

In this Schedule Denitions.

working day means a day other than Saturday, Sunday or a public holiday.

Objection.

2.

(1) A person may le, with Commission, an objection to what has been determined, as published under section 36.

(2) An objection may not be led later than ve working days after the publication under section 36.

(3) The Commission shall make a decision with the respect to the objection and give a copy of its decision to the objector within ve working days after receiving the objection.

(4) The Commissions decision shall set out the reasons for the decision.

3.

(1) A person who led an objection may appeal the Appeal to Tribunal.

Commissions decision to the Appeal Tribunal by ling a notice of appeal with the secretary of the Appeal Tribunal.

(2) A person who has led an objection may not make an appeal later than seven working days after the delivery to that person of a copy of the Commissions decision under paragraph 2(3).

(3) Without limiting what else may be included in the notice of appeal, the notice shall include (a) the appellants initial objection; (b) the Commissions decision; and (c) the grounds of the appeal.

(4) Within the time period specied in subparagraph (2), the appellant shall serve a copy of the notice of appeal on the www.kenyalaw.org 22 CAP.

485C Privatization [Rev.

2009 Commission.

(5) The Commission shall le a response to the notice of appeal with the Tribunal within ve working days after being served with the notice of appeal.

(6) The Tribunal shall begin hearing the appeal within ten working days after the notice of appeal was led and shall conclude the hearings within ten days.

(7) The Tribunal shall make its decision and give a copy of it to the parties within ten working days after the hearing is concluded.

(8) On an appeal, the Tribunal may do any one or more of the following (a) annul anything done in the privatization process, includ- ing annul the privatization process in its entirety; (b) give directions with respect to anything to be done or redone in the privatization process; (c) order the payment of cost as between the parties to the appeal.

Appeal to Court.

4.

A party to the appeal to the Tribunal may appeal the Tribunals decision to the High Court within ten working days after the delivery to the party of a copy of the decision from the Tribunal.

Rules and other 5.

(1) The Minister may make rules governing the procedure of procedural powers.

the Tribunal.

(2) Subject to this Act and the rules made by the Minister, the Tribunal may govern its own procedure.

(3) The Tribunal shall have the same powers as the court to make orders to secure the attendance of persons, for the production of documents or for the investigation and punishment of contempt.

(4) The Tribunal may require a party to provide security for costs as a condition of participating in an appeal.

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485C 23 THIRD SCHEDULE S.

52 TRANSITIONAL PROVISIONS 1.

(1) Upon the coming into operation of this Act, the Commission Ongoing shall take over the implementation and management of any ongoing privatizations process leading to a privatization in a class set out in section 22 (2).

- exclusive to Commission.

(2) Upon the coming into operation of this Act, no ongoing process leading to a privatization may be reversed or otherwise materially altered to the detriment of any party.

2.

Upon the publication of the privatization programme under Ongoing section 17 (3), the Commission shall turn over the implementation and privatizations management of any ongoing process leading to a privatization included - included in in the privatization programme.

programme.

Application of 3.

This Act shall apply, with necessary modications and such Act to continued modications as may be prescribed by regulation, to the implementation privatizations.

and management of a process by the Commission under paragraphs 1 or 2.

4.

(1) Upon the establishment of the Commission, the assets, Transfer of assets, liabilities, rights and obligations of the Executive Secretariat and etc.

to Commission.

Technical Unit of the Public Enterprise Reform Programme shall become assets, liabilities, rights and obligations of the Commission.

(2) For grater certainty, subparagraph (1) applies with respect to employment contracts with the Executive Secretariat and Technical Unit of the Public Enterprise Reform Programme.

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485C Privatization [Rev.

2009 24 [Subsidiary] SUBSIDIARY LEGISLATION L.N.

26/2008.

THE PRIVATIZATION (PRIVATIZATION COMMISSION) (OATH OF SECRECY) REGULATIONS, 2008 1.

These Regulations may be cited as the Privatization (Privatization Commission) (Oath of Secrecy) Regulations, 2008.

2.

Every person who is appointed to be, or to act as (a) a member of the Commission; (b) a member of a Committee of the Commission; (c) an employee of the Commission, or (d) a consultant of the Commission shall, before entering upon the functions of that ofce, take and subscribe to an oath of secrecy in relation thereto.

3.

The oath of secrecy referred to in paragraph 2 shall be taken in the forms respectively set out in the Schedule.

SCHEDULE OATH OF A MEMBER OF THE COMMISSION I ., having been appointed a member of the Privatization Commission, do solemnly swear/solemnly sincerely and truly declare and afrm that I shall well and truly serve the Commission, and that I shall not, other than in the course of my duties under the Privatization Act, or with written consent of the Commission, directly or indirectly reveal any business or proceedings of the Commission, or disclose the nature of the contents of any document relating to such business acquired by me in the performance of my duties as such member.

So help me God.

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2009] Privatization CAP.

485C 25 [Subsidiary] OATH OF MEMBER OF A COMMITTEE OF THE COMMISSION I ., being called upon to serve in the .Committee of the Privatization Commission, do solemnly swear/ solemnly, sincerely and truly declare and afrm that I shall well and truly serve the Committee, and shall not, other than in the course of my duties under the Privatization Act, or with written consent of the Commission, directly or indirectly reveal any business of the Committee communicated to me as such member, or disclose the nature of the contents of any document relating to such business acquired by me in the performance of my duties as such member.

So help me God.

OATH OF AN EMPLOYEE OF THE COMMISSION I.

being an employee of the privatization Commission, do solemnly swear/ sincerely and truly declare and afrm that I shall well and truly serve the Commission, and shall not other than in the course of my duties under the Privatization Act, or with written consent of the Commission, directly or indirectly reveal any business of the Commission, or disclose the contents of any document relating to the business of the Commission acquired by me in the performance of my duties as such employee.

So help me God.

OATH OF A CONSULTANT OF THE COMMISSION I ., having been engaged as a Consultant, by the Privatization Commission, do solemnly swear/ sincerely and truly declare and afrm that I shall not, other than in the course of my duties as such consultant, or with the written consent of the Commission, directly or indirectly reveal any business of the Commission, or disclose the contents of any document relating to the business of the Commission acquired by me in the performance of my duties as such consultant.

So help me God.

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