May 27, 2022

Mawazo Writing Africa

Writing about the main

Kenyan court orders state to disclose secret SGR deal

The High Court in Mombasa has ordered the Kenyan government to release two activists agreements related to the construction of the Ksh 450 billion (US$3.8 billion) standard gauge (SGR) railway project.

Judge John Mativo also issued an order declaring that the failure of the Attorney General, Department of Transportation and Department of Treasury to provide the requested information constituted a violation of the right of access to information.

Activists Khelef Khalifa and Ms. Wanjiru Gikonyo sought to publicize all contracts, agreements and studies related to the construction and operation of the SGR. They argued that keeping the documents confidential was against the law and discouraged transparency in governance.

Judge Mativo ruled that officials have a constitutional duty to provide information to Kenyans and said that any restriction on access to information from the government must have a genuine purpose and demonstrable effect of protecting a legitimate national security interest. He went on to say that such a restriction is only justified if its effect is to protect a country’s existence or its territorial integrity.

“It is clear that the respondents’ attempt to hide behind the Hiding provisions of Section 3(6) & (7) of the Official Secrets Act is contrary to Section 35, Section 29 of the Access to Information Act and should be rejected,” ruled Judge Mativo.

Constitutional Review

< p>He said that if the information requested by the government is not provided within 21 days, as required by law, then the request is all but denied.

“This court would oppose the letter proceed and spirit of the Constitution, if they were to be persuaded by the defendants’ argument that the petitioners had not exhausted the statutory dispute resolution mechanism in such circumstances, it would amount to tolerating an illegality,” said Richter Mativo.

He added that there are no two legal systems governing access to information held by public bodies, each operating in their own field.

“There is only one legal system which regulates the right of access to information, which is shaped by the Constitution, which is the supreme law, and all statutes, including the Official Secrets Act, derive their force from the Constitution and are subject to constitutional control,” said Judge Mativo /p>

Secrecy

The judge said that the respondents’ failure to provide the information requested by the two activists violated Article 10 of the Constitution.

The petitioners had argued that despite being one of the government’s most expensive projects, documents related to the SGR project and its funding have never been released.

“SGR is the largest capital-intensive infrastructure project ever built in the country was, but “In spite of this extraordinary expenditure of public funds, the project was carried out with controversy and secrecy from the beginning,” they argued.

According to the petitioners, information about the financing, the tendering process and the construction of the project was not made public The petitioners argued that the Treasury started repaying Ksh 74 billion (USD 637 million) in loans to date in January 2019 and has increased to Ksh 111 billion (USD 956 million) to date . USD) after a second loan fell due in January last year.

Mr. Khalifa and Ms. Gikonyo said they were concerned that such a capital-intensive project would have a far-reaching impact on the public’s resources and livelihoods Citizens was operated without public participation.

Transport Minister Joseph Njoroge had declared in his affidavit submitted to the court that compatible There were non-disclosure clauses between the government and Chinese contractors about the construction of the SGR.

Read:Revealed: Hidden Traps in Kenya SGR deal with China

< p>Dr. Njoroge further said that it would constitute a breach of terms of the agreements if the two activists were provided with the disclosure of documents related to the construction of the SGR line project.

“Upon receiving the petitioners’ request for information, the Kenya Railways Corporation that the contracts of the projects for which information is requested are between the governments of the People’s Republic of China and the government of Kenya,” said Dr. Njoroge.

Dr. Njoroge said issuing the requested orders would affect Kenya-China relations and stifle successful implementation of the national transport policy.

Attorney General Kihara Kariuki wanted the petition thrown out as Ms Gikonyo and Khalifa did not had exhausted all available means of dispute resolution.