Court of appeal orders state to disclose $4.5 billion SGR contracts

The Court of Appeal has dismissed the Attorney General’s bid to withhold key contracts and documents relating to the Standard Gauge Railway project.

In a judgment delivered Friday last week, a three-judge bench in Mombasa upheld a High Court decision compelling the state to disclose all agreements, loan documents and operational contracts concerning the multi-billion-dollar project.

This includes the controversial Take-or-Pay agreement and the deal with Africa Star Railway Operation Company Limited.

Justices Agnes Murgor, Kibaya Laibuta and Grace Ngenye-Macharia ruled that the government cannot hide behind non-disclosure clauses or the Official Secrets Act to deny citizens access to information.

In 2021, activists Khelef Khalifa and Wanjiru Gikonyo, represented by the Katiba Institute and the Commission on Administrative Justice, petitioned the High Court after the government ignored their requests for information dating back to December 2019. 

The SGR, largely financed by a $4.5 billion loan from China Exim Bank, had been procured amid what petitioners called “controversy and secrecy”. 

Previous court rulings had already found that the project violated public procurement laws and that no meaningful public participation had been conducted.

The Attorney General argued that the requested contracts contained non-disclosure clauses binding Kenya to its bilateral agreement with China and that disclosure would undermine national security and prejudice foreign relations under section 6 of the Access to Information Act. 

The government also invoked sections 3(6) and (7) of the Official Secrets Act, which criminalise unauthorised disclosure of state documents.

But the Court of Appeal was unequivocal. 

“Mere invocation of sections 3(6) and (7) of the Official Secrets Act is insufficient to justify refusal,” the bench said.  

It said that Parliament had already amended the Official Secrets Act to require that its provisions apply subject to Article 35 and the law relating to access to information. 

On the government’s reliance on non-disclosure clauses, the judges found that the state had failed to provide any substantive evidence of real harm. 

“The appellant failed to lay a substantive basis for its claim that the information requested fell within the exemptions,” the ruling said. 

Blanket refusals, the court held, are not enough.

Crucially, the appellate judges rejected the AG’s argument that the petitioners had to prove the necessity of their request. Citing section 4(2) of the Access to Information Act, the court affirmed the motive-blind principle. 

“The right to access information is not affected by any reason the person gives for seeking access,” the judge said.

The court emphasised that the burden rests on the state to justify withholding information, not on the citizen to justify asking for it.

The first respondent, Khalifa, had sought everything from feasibility studies and environmental impact assessments to shareholder details of Africa Star Railway Operation Company. 

The government responded that the Office of the Attorney General was not the custodian of the documents and that disclosure would cause “serious legal and financial repercussions”.

The Court of Appeal was not persuaded, noting that the Office of the Attorney General Act expressly makes that office the depository of all international agreements signed for the government. 

“Access to state information is not a bureaucratic privilege but the very distinction between cherished democracy and dreadful monarchy.”

The judges ordered each party to bear their own costs, given the public interest nature of the litigation.