Why China Could Punish Kenya Over Murkomen Releasing SGR Contract
Murkomen met his promise of releasing the contract to the Wetangula-led committee during his vetting, which has been shrouded in secrecy, despite the risks that carry with the strict confidentiality terms broken.
Marvin Chege 
Transport Cabinet Secretary Kipchumba Murkomen is now facing a series of tough questions and possible consequences of making public the details of the Standard Gauge Railway (SGR) contract.
Azimio la Umoja One Kenya Alliance spokesperson Makau Mutua questioned Murkomen's purpose in releasing the highly discussed contract and whether he was doing it for the good of the members of the public.
"Yes, I must see all SGR contract(s). But what next? Renegotiate them? Repossess/reject the “collaterals”? Or is it just hot air to distract Kenyans?
"Who were uber DP, Treasury CS, and Senate Majority Leader when SGR contracts were signed? I smell a rat. Say more, or stop PR," he wrote on social media.
Murkomen met his promise of releasing the contract to the Wetangula-led committee during his vetting, which has been shrouded in secrecy, despite the risks that carry with the strict confidentiality terms broken.
Saboti Member of Parliament Caleb Amisi, who is also a member of the Defence and Foreign Relations Committee, expressed fear that Kenyans could pay dearly for any violation caused by his actions.
“We broke a clause on confidentiality in the China Vs Kenya SGR contract. A beggar has no choice. We could pay dearly for this! ” he said in a post.
According to the agreements revealed, Kenya had committed to maintaining secrecy, which would give the explanation as to why former President Uhuru Kenyatta remained tight-lipped on its contents, despite a promise he had made to share them personally.
"The borrower (National Treasury) shall keep all the terms and conditions hereunder in connection with this agreement strictly confidential.
“Without the prior written consent of the lender, the borrower shall not disclose any information hereunder or in connection with this agreement to any third party unless required by applicable law,” reads the confidentiality clause in the contract.
The consequences of a breach of confidentiality include dealing with the ramifications of lawsuits, as well as loss of business relationships. The agreements were signed between the China Exim Bank, National Treasury, Kenya Railways Corporation and Kenya Ports Authority to facilitate the construction of the SGR from Mombasa to Naivasha.
Details of whether or not CS Murkomen had received written consent from China Exim Bank before sharing the contracts were not clear.
The High Court in Mombasa in May 2022 compelled the government to furnish two activists with with agreements relating to the construction of the Ksh320 billion project. The contracts are governed by Chinese law, even though the project was undertaken in the country.
In the event a dispute regarding a breach of confidentiality arises, arbitration would be done in China which would have the final say. According to the agreement, any arbitration shall take place in Beijing and any awards shall be final and binding upon both parties.
Clause 15.1 of the agreement stipulated the governing law; “This agreement and the rights and obligations of the parties hereunder shall in all aspects be governed by and construed in accordance with the laws of China."
Clause 15.3 further stated that disputes that could not be resolved by friendly consultations, would be submitted to the China International Economic and Trade Arbitration Commission.
Just those scenarios have been enough to send chills down Kenyans' spines, expressing fear of China subjecting the country to severe punishment for Murkomen's actions.
"Of course, the public has the right to know but the release of the contract contravenes disclosure provisions in the contract. Kenya cannot disclose the content of contracts without creditor consent. Now watch a crisis unfold. China will severely punish KE for breach of confidentiality," banker Mohamed Wehliye said.
"I have just scanned through the SGR documents, and it has shown that the dispute will be resolved in Beijing; it will apply Chinese law, and it’s quite skewed against Kenya," National Assembly Deputy Speaker Gladys Boss Shollei said.
Nairobi SGR Terminus. /FILE
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