The High Court in Mombasa has ordered the Kenyan government to provide two activists with agreements relating to the construction of the Ksh450 billion ($3.8 billion) standard gauge railway (SGR) line project.
Justice John Mativo further issued an order declaring that failure by the Attorney-General, Transport and National Treasury Principal Secretaries to provide the information sought is a violation of the right to access to information.
Activists Khelef Khalifa and Ms Wanjiru Gikonyo sought to have all contracts, agreements and studies related to the construction and operations of the SGR made public. They argued that keeping the documents confidential violates the law and discourages transparency in governance.
Justice Mativo ruled that public officers have a constitutional duty to make information available to Kenyans saying that any restriction on access to information from the government must have a genuine purpose and demonstrable effect of protecting a legitimate national security interest. He further said such a restriction is justified only if its effect is to protect a country's existence or its territorial integrity.
“It is clear that the respondents’ attempt to hide behind the provisions of sections 3(6) & (7) of the Official Secrets Act flies in the face of Article 35, section 29 of the Access to Information Act and falls to be rejected,” ruled Justice Mativo.
He said that if the information sought from the government is not supplied within 21 days as provided by the law, then the request is as good as refused.
“This court would be going against the letter and spirit of the Constitution if it were to be persuaded by the respondents’ argument that the petitioners failed to exhaust the statutory dispute resolution mechanism under such circumstances, it would amount to condoning an illegality,” said Justice Mativo.
He added that there are no two systems of law regulating access to information held by public bodies each operating in its own field.
“There is only one system of law regulating the right to access information shaped by the Constitution which is the supreme law and all law including the Official Secrets Act derives its force from the Constitution and is subject to constitutional control,” said Justice Mativo.
The judge said that the failure by the respondents to provide the information sought by the two activists is a violation of Article 10 of the Constitution.
The petitioners had argued that documents related to the SGR project and its financing have never been made public despite being one of the most expensive projects done by the government.
“SGR is the largest capital-intensive infrastructure project ever constructed in the country, but despite this extraordinary expenditure of public funds, the project has been undertaken with controversy and secrecy from its inception,” they argued.
According to the petitioners, information about the project’s financing, tendering process and construction has not been released to the public.
The petitioners argued that the National Treasury began loan repayments in January 2019 to the tune of Ksh74 billion ($637m) to date and increased to Ksh111 billion ($956m) after a second loan became due in January last year.
Mr Khalifa and Ms Gikonyo argued that they were concerned that such a heavy capital intensive project with wide-ranging impact on public resources and citizens’ livelihoods was undertaken with no public participation.
Transport Principal Secretary Joseph Njoroge, in his affidavit filed in court, had said that agreements entered between the government and Chinese contractors over the construction of the SGR had non-disclosure clauses.
Dr Njoroge further said that it would be in breach of contractual terms of the agreements if the two activists are supplied with the disclosure of documents related to the construction of the SGR line project.
“Upon receipt of request for information from the petitioners, Kenya Railways Corporation explained that the contracts of the projects to which information is being requested are between the governments of the People’s Republic of China and the Government of Kenya,” said Dr Njoroge.
Dr Njoroge said that if the orders sought were granted, it would injure relations between Kenya and China and would stifle the successful implementation of the National Transport Policy.
Attorney-General Kihara Kariuki wanted the petition thrown out saying Ms Gikonyo and Khalifa had not exhausted all means of dispute resolution available.