Robust, Agile PPP laws for Kenya

Planned reforms to laws governing PPPs will infuse best practice and likely increase investor confidence and PPP activity and opportunities in Kenya over the next few years, says Kithinji.

“The bill before Parliament seeks to make the PPP legal and regulatory framework more agile and more robust. It fills gaps existing under the current legislation – things like streamlining the privately initiated investment proposal process, creating clear timelines, and enhancing the role of the PPP Directorate as the resource centre for PPPs in our country,” she explained.

A “very important” reform under the Public Private Partnerships Bill 2021, notes Kithinji, is the introduction of PPPs by county governments, not just Kenya’s national government.

“We have around 47 county governments, and now they will be able to enter PPP projects for their counties, which is a big thing. We’re likely to see a lot of PPP activity around the country if the Act really works in the way it’s intended to work.”

Kithinji cautions that private businesses looking to partner on projects with either the national or county governments will still have to meet vital criteria.

“While there’s the danger of haphazard development, the good thing is that PPP projects must be aligned with the government’s priorities,” explained Kithinji. “So it’s not possible for a private party to think just because it’d be nice to put up a wind project somewhere – no no no, it doesn’t work like that. You have to align with the county priorities and national priorities.”

Given the reforms, the role of transactional lawyers is likely to significantly increase.

“Lawyers and transaction advisors will be crucial to the processes when the new PPP Act is implemented, guiding clients on both the public sector and private sector sides,” she said. “Lawyers will probably lead a lot of stakeholder engagement. It’s one thing to have a bill or law in place, but bringing it to life requires much more human intervention and deliberate actions to carry out the intention of the new law.”

While the reforms may have teething problems, and perhaps there’ll be funding challenges for some projects at first, Kithinji believes the opportunities far outweigh the challenges.

“I think we’ll see more activity in the priority areas for the government, so it could be energy, agriculture, manufacturing and transport. But I don’t think it locks out other sectors, including social projects, for instance.”

As the reforms roll out, it’ll be vital for project investors to have local experts on the ground.

“There’s a nuance that clients need, not just from a legal perspective, but from a context, cultural, and political perspective,” Kithinji commented. “So you need lawyers with that experience, within that setting, to be able to guide you. Ashitiva is able to ensure that the client is constantly engaged with the other stakeholders. You need continuous engagements for projects to ultimately become a success.”

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