Five judges have slammed breaks on government’s punitive and illegal orders that resulted in SGR-only cargo haulage – and with it tens of thousands of job losses.
The court, after finding the government had “legitimate” reasons for issuing SGR directives, has suspended its orders for 180 days. During this period, the government will “regularize” illegal SGR directives by calling public participation that it failed to conduct before giving the orders.
SGR directives resulted from a take-or-pay agreement between Kenya Ports Authority (KPA) and Kenya Railways Corporation (KRC).
KPA and KRC entered this deal on September 30, 2014, to ensure a set volume of cargo is transported via SGR. The government did this as a condition for SGR financing by China.
Beijing needed a guarantee that over Sh327 billion SGR loan will be repaid. Having a daily set volume of cargo on the train assured Chinese the train will have a business whose proceeds will repay the loan.
But to whose expense? Many truckers lost jobs, clearing forwarding firms in Mombasa wound up.
The five-judge bench ruled: “The claim that the directives by KPA dated March 15, 2019, and August 3, 2019, were in violation of Articles 10 and 47 of the Constitution for want of public participation and non-compliance with fair administrative procedures succeeded. The Court declares the Impugned Directives constitutionally infirm. The Impugned Directives are hereby quashed.”
“Given the potential of order above to disrupt the orderly operations of the port and the operationalization of the National Transport Policy, the effect of that order is hereby suspended for 180 days to afford the Respondents an opportunity to regularize the situation.”
Justices Lydia Achode, Eric Ogola, Anthony Mrima, Joel Ngugi, and Pauline Nyamweya presided over the case.
‘County will not run port’
Meantime, the court restrained Mombasa county from managing and operating Mombasa port. But Schedule Four of the Constitution on transport and harbour functions list this as one of county’s mandates.
A flurry of suits at the Court of Appeal is expected in attempts to overturn this decision. Residents are increasingly demanding more but critical control over local recourses.
This judgment resulted from petitions that got filed in 2018 by three Mombasa residents – William Ramogi, Asha Omar, and Gerald Kiti – and in 2019 by Kenya Transporters’ Association (KTA).
MUHURI, rights activist, Maina Kia, and Mombasa county government supported the 2018 suit as interested parties.
The 2018 petition vouched for Mombasa county control over KPA. And it was against the take-or-pay agreement.
KTA’s case, on the other hand, opposed SGR-only haulage of cargo.
Read the full judgement here:
Quashing of SGR orders is an important and massive win for Mombasa residents who staged wide and peaceful street protests last year. But the significant levels of destructions caused by SGR directives will not be overturned immediately.
From 2018, far-reaching devastations raged over SGR directives, made unilaterally and without public participation.
Mombasa economy severely ripped apart. The effect was felt far and beyond the borders. Any prospect for an economic boom dimmed by each count.
A “classified” scientific report by University of Nairobi (UoN) on SGR’s impact, which MUHURI and Okoa Mombasa recently declassified, confirmed the worst state of Mombasa economy.
Mombasa is facing a recession because it lost more than Sh17.4 billion in revenue since the launching of SGR freight services in 2017, the report shows.
For much of the years, Mombasa locals waged scorched earth-like strategy to save their economy. There was a blitz of legal actions, persistent street protests, and lobbying and petitioning of legislators at Parliament.
And on November 7, 2020, afternoon, the will of millions of locals triumphed over government’s illegal and unconstitutional economic policies. The judges affirmed that the government has no powers to interefere with freedom of choise, expecially on cargo transportion where SGR had exslusive rights.
How anti-SGR protests erupted
SGR’s deadly impact started to be felt more powerfully in 2019.
There was hard evidence of clearing and forwarding firms in Mombasa shifting en masse to Nairobi Inland Container Depot (ICD).
Many other firms wound up, rendering thousands of their employees redundant.
Inside the port, thousands of truck owners and drivers were no longer needed to haul cargo because SGR evacuated all freight.
Many local container freight stations sat empty.
And that’s not to mention the tens of thousands of people who had been indirectly affected: truck dealerships, fuel service stations, mechanics, spare parts dealers, restaurants, informal sector kiosks, hawkers and many more.
The situation rapidly turned into a powder keg.
Hundreds of locals poured into the streets to demand revocation of illegal SGR orders. They wanted fair economic policies, at least to salvage an economy on the verge of death.
Weekly protests went on for an earth-shattering four months.
The demos were always peaceful except when police twice broke them violently with batons and teargas.
The Senate in November 2019 sought an explanation over the directives from Transport CS, James Macharia. The Minister failed to provide a satisfactory response. In fact, Macharia lied to the Senate that he had lifted the orders, yet it was still in force.
The government doubled down on alienating Mombasa economically when it built dry ports in super-rich counties of Nairobi and Nakuru. This move was against an earlier plan to set an ICD in Voi, a town within 160 kilometres from Mombasa.
Tragically, the government succeeded in turning Mombasa port into a transshipping point. Ships would dock, and their cargo offloaded onto SGR for transportation to either Embakasi or Naivasha ICD. No longer were clearing and forwarding services, or trucking, available.
The government further used coronavirus pandemic to ban trucking. We witnessed authorities blocking truckers from picking cargo at the port. They delayed or failed to issue drivers with Covid-19-free certificate needed to access the facility.
But victims of government-sponsored economic sabotage against Mombasa – which is being carefully planned and executed by their mandarins to enrich Nairobi and Naivasha, and gravely impoverish port city – are not dampening their determination to hold the state accountable for the loss of livelihoods.