The High Court in Mombasa has demanded the government to disclose details of the Standard Gauge Railway (SGR) project to members of the public.
The court ruled on Friday, May 13 that the government had refused to reveal evidence which noted that the agreement between it and the Chinese government was top secret.
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The petitioners – Khelef Khalifa and Anor, through petition number E032 of 2021, compelled them to disclose the details of the contract in line with the Access To Information (ATI) Act.
The court agreed with the petitioners that the documents should be rightfully made available to them by the government, especially from the Transport and Infrastructure Cabinet Secretary.
It declared that failure to reveal the information in the letter dated December 16, 2019, was tantamount to violations of Article 35(1) and (3) and Article 10 of the constitution.
“Khelef Khalifa wrote letters on his behalf and on behalf of Okoa Mombasa to different government agencies and ministries requesting the disclosure of info on contracts linked to the government and other entities on the SGR.
“The government agencies refused to disclose info & after following up with Kenyan Ombudsman (The Commission on Administrative Justice [CAJ]), he approached the court seeking disclosure of information and declarations that his right of access to information was denied,” Katiba Institute noted on Twitter.
With respect to the ATI of the SGR contracts, the court held that on the issue, the case was res judicata (claim preclusion) and that it disagreed on the basis that previous cases listed by the government did not have similar parties, issues or prayers, therefore, were distinguishable from the case at hand.
On the issue of suing state officers in their personal capacity for refusal to disclose information, the court held that the petitioners did not prove bad faith on the part of the individually named respondents for them to be sued in their personal capacities.
The Petitioners followed the process set out in the ATI Act to request information but the government refused to disclose the information as per section 9 of the ATI Act.
“The Respondent’s reliance on Sec 3(6) & (7) of the Official State Secrets Act to refuse disclosure of the information is contrary to the Supreme law of the land- the CoK specifically Article 35 of the Constitution, as well as Section 29 and Para 4 of the Schedule to the ATI Act.
“Even if Section 3(6) and (7) was never amended by the ATI Act it would have still been read in conformity with the necessary modifications in line with the Bill of Rights right of access to information,” added Katiba Institute.
The petitioners had argued in their petition that the SGR, the largest capital-intensive infrastructure project ever constructed in the country worth over Ksh300 billion, was undertaken with controversy and secrecy from the beginning. The loans used to pay for the project would be recouped by Kenyans, hence the urge to reveal the deal.
The matter of the SGR was brought into the limelight recently by Deputy President William Ruto, who called it one which ruined the lives of the people of the Coastal region.
He claimed that a section of individuals had taken advantage of the project to turn it into programs that were beneficial only to themselves at the expense of the people of the region.
“It was never the intention of the government of Kenya to build the SGR so that the Coast people can be impoverished. A few people took the project hostage and ended up with selfish programs that benefit a few people to the detriment of the entire population of the coast people,” he addressed.
Ruto vowed to overturn the fortunes of the Mombasa residents by reversing some of the SGR deals when elected president after August 9.
“We have made a commitment to reverse what has become the biggest impoverishment of the people of Mombasa and the coast entirely,” he added.