The government, through Prime Cabinet Secretary Musalia Mudavadi, published a statement on July 29, 2024, about the privately initiated proposal by Adani Airports Holdings Limited for the Jomo Kenyatta International Airport (JKIA) upgrade.
The status report is timely as it seeks to address concerns among Kenyans by clarifying that JKIA remains a strategic national asset and is not up for sale.
Of importance, however, is that the report emphasises that all terms and conditions under the proposed arrangement by Adani Airports Holdings Limited are subject to the Public-Private Partnerships (PPPs) Act 2021, the current legal framework that seeks to streamline the regulatory framework for PPPs by providing for the participation of the private sector in the financing, construction, development, operation or maintenance of infrastructure or development projects.
Section 89(1) of the Act enables the Finance minister to make regulations to implement the law.
The Treasury, back in 2022, developed the draft Public Private Partnership Regulations, whose main objective would be to give effect to the Public Private Partnership Act 2021 and provide details for the effective implementation of the law.
Pursuant to Article 232(1)(d) of the Constitution of Kenya, the draft regulations were circulated for comments and, after that, submitted before the Committee on Delegated Legislation of the National Assembly and underwent various considerations, however, the same yet to be gazetted and adopted.
The lack of regulations not only leaves gaps but also raises questions as to the effectiveness and proper implementation of the functions of the Public-Private Partnerships Committee and the directorate established under the Act.
Currently, there is also a lack of prescribed forms for lodging and hearing petitions and the payment of prescribed fees.
Some of the key highlights of the draft Public-Private Partnership Regulations include but are not limited to, a clear demonstration of the interplay between the directorate and other committees, secretariats and personnel in carrying out its mandate in the implementation of the objects of the Act.
The draft regulations also enable the directorate to publish the following guidelines to be approved by the committee: guidelines for the development and content of feasibility studies, an outline of the requirements for the submission of feasibility study reports and the preparation of value assessment reports.
In the wake of Kenya’s public debt and given the government’s intention to make additional infrastructure investments by leveraging PPPs, there is a need for timely adoption of the Public-Private Partnership Regulations to close any gaps and address the current opacity in the adoption and implementation of projects under the PPP framework.
