Kenya’s President Uhuru Kenyatta flags off the inaugural Nairobi-Suswa, Standard Gauge Railway (SGR) line constructed by the Chinese Communications Construction Company (CCCC) and financed by the Chinese government, on October 16, 2019 in Nairobi./ AFP

NAIROBI, Kenya May 16- The High Court in Mombasa now wants the government to grant two activists access to agreements pertaining to the construction of the Sh540 billion Standard Gauge Railway (SGR) project. 

Activists Khelef Khalifa and Wanjiru Gikonyo wanted all contracts, agreements and studies related to the construction and operations of the SGR made accessible to the general public. 

The two argued that keeping the documents confidential violates the law and discourages transparency in governance.

Justice John Mativo issued an order stating that failure by the Attorney-General as well as the Transport and National Treasury Principal Secretaries to provide the sought after information is a violation of the right to access to information.

Justice Mativo ruled that public officers have a constitutional duty to make information available to Kenyans adding that any restrictions pertaining to 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.

The judge noted that failure by the mentioned government officials to provide the sought after information within 21 days as provided by the law would mean that the request was as good as denied.

“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,” the High Court judge noted. 

He said that failure by the respondents to provide the information is a violation of Article 10 of the Constitution.

The petitioners had argued that documents related to the SGR project and its financing have yet to be made public despite being one of the most expensive government projects to date.

“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 Sh74 billion to date and increased to Sh111 billion after a second loan became due in January last year. 

Khalifa and Gikonyo argued that they were concerned that such a heavy capital-intensive project with a 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.

The Transport PS further said that it would be in breach of contractual terms of the agreements if the two activists were 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,” Njoroge said. 

He added 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 Gikonyo and Khalifa had not exhausted all means of dispute resolution available.