Activists move to court seeking SGR deal details
Reuben Mwambingu @reubenwambingu
Two civil society groups have filed a petition with the High Court in Mombasa seeking to obtain details of contracts and agreements relating to construction and operations of Standard Gauge Railway.
Muslims for Human Rights (Muhuri) chairman Khelef Khalifa and National Co-ordinator of The Institute of Social Accountability (TISA) Wanjiru Gikonyo want the court to compel Treasury and Transport PSs and the Attorney General to disclose details of the SGR contracts.
They filed the petition on June 21 through Otieno Ogola & Co Advocates.
Africa Star Railway Operations Company (Afristar), a subsidiary of China Road and Bridge Corporation (CRBC) that built the railway, has been overseeing the Madaraka Express Service from inception.
However, since the inauguration of the service four years ago, Kenya Railway Corporation (KRC) has gone through the learning curve and can now operate SGR, and has even initiated the process to cut ties with the operator.
Public funds
Khalifa and Gikonyo say in their petition that despite the SGR being the largest capital-intensive infrastructure project ever constructed in Kenya, costing taxpayers in excess of $4.5 billion (Sh450 billion), the “extra ordinary expenditure of public funds” has been shrouded in controversy and secrecy from its inception.
“To this day, fundamental information about the project’s financing, tendering process, and construction has not been released to the public. Key contracts related to these aspects of the project remain secret. Procedures in the Public Procurement Act have been routinely disregarded,” the petitioners argue.
Petitioners state that the Court of Appeal in Civil Appeal 13 of 2015 affirmed that the SGR project was procured in violation of article 227(1) of the Constitution and sections 6(1) and 29 of the Public Procurement and Disposal Act, 2005.
According to the petitioners, the High Court in Petition 159 of 2018 and 201 of 2019 (Consolidated) stated that where a public body exercised its powers and such exercise of statutory power transcended the borders of the entity or had significant effect on the stakeholders or the public, it ought to be subjected to public participation.
However, in the case of the SGR Take or Pay Agreement that was the subject matter of this petition, no public participation was carried out and therefore the directives emanating from the agreement were found to be constitutionally infirm and a violation of article 47 of the Constitution, the he petition states.
It adds that the petitioners 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.
According to the 17-page petition, National Treasury began loan repayments in January 2019 which has climbed to Sh74 billion to date. This, it further states, was expected to increase to Sh111 billon after a second loan became due in January this year.
SGR is operated by Africa Star Railway Company Ltd, a private company, which pays operating costs in excess of 1 billion per month.
“Our taxes are funding the SGR. We have a right to know the details of the project. How our money is being spent, the consequences of a loan detail and the government’s decision making process in signing the deal. Right now we know none of this. The Public is completely in the dark,” said Khalifa.
Access to information
He accused the State of denial of access to information pertaining to the contract between the Government of Kenya, China Exim Bank, CRBC, Government of the People’s Republic of China, China Development Bank and Afristar.
