Okoa Mombasa and the Institute for Social Accountability (TISA) have sued five government officials for failing to proactively, and disclose SGR contracts after request.

They are seeking several orders, including revealing contracts Kenya signed with China for the construction and operation of the Standard Gauge Railway (SGR).

These agreements ought to be public, but the Kenyan government, without justification, has classified them.

MUHURI chairman Khelef Khalifa, and TISA national coordinator, Wanjiru Gikonyo, on June 21, 2021, sued on behalf of Okoa Mombasa.

Read the petition here.

The suit succeeded an Access to Information (ATI) request done by Okoa Mombasa on December 16, 2019.

The deadline for disclosing the contracts elapsed 21 days after the request got received, the Access to Information Act, 2016 states. More than 553 days have expired, and the government has refused to explain why it is still classifying the SGR contracts.

Those sued are Transport and Treasury permanent secretaries, the Attorney-General Paul Kihara, Solomon Kitungu and Julius Muia.

Even though Kitungu and Muia are state officers, the coalition sued each in their capacities and called for court action against them, including compensating Khalifa for violating his right of accessing information.

Khalifa made the ATI request for Okoa Mombasa, a coalition of workers’ unions, businesses, professional associations, and civil society organizations who have come together out of concern for the livelihoods and well-being of Mombasa residents.

The coalition said in a statement: “The petition argues that the Constitution prohibits confidential contracts for public infrastructure projects, which by law require public participation and accountability. Keeping such contracts confidential is a violation of several Constitutional articles related to access to information, public finance management and transparency in governance.”

Why publicizing SGR contracts matters

The Jubilee regime borrowed expensively to finance the Sh450 billion construction of SGR, which connected Mombasa and Nairobi—but killed thousands of businesses in the Coast and towns along the Mombasa-Nairobi highway.

The country struggles to repay its monstrous debt to China. There have been illegal directives designed to shore up revenue, yet SGR cannot break even.

In August 2019, the government forced all cargo arriving at the Mombasa port to be railed to Nairobi and Naivasha Inland Container Depots (ICDs) via SGR, moving businesses and economy upcountry.

In November 2020, Mombasa High Court, after a petition by some Okoa Mombasa members, declared the directives illegal and gave Kenya Ports Authority (KPA) 180 days to regularize the orders by conducting public participation. But KPA declined to hold such forums, appealed the judgment, and the appellate court extended the directives.

Landmark case

This petition roots for more accountability and openness in public finance, and it is about the survival of participatory democracy in Kenya.

Should this case succeeds, there will be enforceable consequences against government officials fond of sealing public records of projects financed or whose loans are being repaid by taxpayers.

Railing expensive than trucking

Kenyans are repaying SGR loan through their noses. SGR’s monthly running cost surpasses Sh1 billion, more than what it should rake in, meaning the train is operating at a loss since its launch four years ago. The government has passed down the burden to fill the shortfall to Kenyans, especially the Mombasa people.

Transporting cargo to Nairobi ICD by SGR is up to 50 per cent expensive than truck, the Okoa Mombasa fact sheet shows. Trucking cost Sh80,000 while railing is at least Sh120,900.

Okoa Mombasa and MUHURI last October declassified long-hidden university research that revealed how SGR operations ravaged Mombasa’s economy.

Mombasa county government commissioned the study but deemed it “classified,” hiding it from public view for the past year.

The study contained hundreds of pages, never seen before by members of the public or the media, showing the devastation the SGR has brought to the port city.