Mombasa court orders state to make public SGR contracts

Khalifa and Gikonyo argued that the SGR project was undertaken with a lot of controversy and secrecy.

In Summary
  • On December 16, 2019, Khalifa requested the national government to furnish him with the contacts of the SGR, but that never happened.
  • In their June 2021 petition, Khalifa and Gikonyo sued Transport Principal Secretary Solomon Kitungu and his Treasury counterpart Treasury Julius Muia for holding onto the public information.
An SGR cargo train at the Port of Mombasa on January 4, 2017.
An SGR cargo train at the Port of Mombasa on January 4, 2017.
Image: FILE

A High Court sitting in Mombasa on Friday directed the national government to disclose the multi-billion Standard Gauge Railway (SGR) contact details.

Khelef Khalifa, the chairperson of the Muslims for Human Rights (Muhuri), and Wanjiru Gikonyo, last year June 21 moved to court to compel the government to make the contract details public.

In their petition, Khalifa and Gikonyo argued that the SGR project was undertaken with a lot of controversy and secrecy.

They aver that fundamental information about the project’s financing, tendering process, and construction has not been released to the public.

They stated that they understand from limited public information on the project that financing of the SGR was largely obtained through a concessional and commercial loan by the China Exim Bank.

They also said the National Treasury began loan repayments in January 2019 to the tune of Sh74 billion, which was expected to increase to Sh111 billion after a second loan became due in January 2021.

The duo said that key contracts related to aspects of the project remain secret and legal procurement procedures were routinely disregarded.

On December 16, 2019, Khalifa requested the national government to furnish him with the contacts of the SGR, but that never happened.

He again wrote to the government in May 2021.

In their June 2021 petition, Khalifa and Gikonyo sued Transport Principal Secretary Solomon Kitungu and his Treasury counterpart Treasury Julius Muia for holding onto the public information.

In the petition, the Katiba Institute and Commission on Administrative Justice have been listed as first and second interested parties.

Muhuri chair Khelef Khalifa.
Muhuri chair Khelef Khalifa.
Image: BRIAN OTIENO

Khalifa and Gikonyo asked the court to declare that the national government violated the right to access information for failing to provide them with the information sought.

They also asked the court to declare that the failure by the respondents to provide the information sought under Article 35(1)(a) and also to publicise the information per Article 35(3) is a violation of Article 10 of the constitution.

They asked for an order compelling the government to forthwith provide, at their own cost, the information sought by the Khalifa in his letters dated December 16, 2019, and May 13, 2021.

High Court Judge John Mativo, who has been hearing the matter, on Friday ruled that the government had failed to make a decision, hence that can be considered a refusal of the request.

He said the mere request for information held by a public body obliges the public officer to produce it or justify withholding it.

“Public bodies have a constitutional duty to give people access to information so that they can exercise their rights. When they try to subvert a person’s constitutional right by being unresponsive and playing possum their conduct should be deprecated,” said Mativo.

He directed that failure by the Respondents (government) to provide the information sought under Article 35(1)(a) and also to publicise the information per Article 35(3) as requested by the petitioners is a violation of the right to access to information.

He also ruled that the failure to provide the information sought is a violation of the constitution.

“In conclusion, I find and hold that this petition succeeds. I allow it and issue the following orders: an order compelling the Respondents to forthwith provide, at the Respondents’ cost, the information sought by the first Petitioner in his letters to the Respondents dated December 16, 2019, and May 13, 2021,” said Mativo.

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