Container Terminal 2 Privatisation caseA challenge to a government MOU that would effectively privatise Container Terminal 2 at the Port of Mombasa | Constitutional Petition No. 82 of 2019, High Court Mombasa Case filed: July 2019Current status: Case closed (partial victory for petitioners)
- The Dock Workers Union
- Taireni Association of Mijikenda
- Muslims For Human Rights (Muhuri)
Respondents / Appellants
- The Hon. Attorney General
- Cabinet Secretary, Ministry of Transport and Infrastructure
- National Assembly
Kenya Ports Authority
Mediterranean Shipping Company
Kenya Seafarers Welfare Association
Seafarers Union of Kenya
12 May 2023: Cross-appeal dismissed
The Court of Appeal at Mombasa issued its judgment dismissing the cross-appeal by the National Assembly, finding it to be without merit. The original judgment stands.
28 Feb 2022: Attorney General withdraws appeal
The Attorney General withdrew the government’s original appeal on the grounds that the underlying substance of the appeal had been compromised. However, the National Assembly cross-appeal remains.
19 Dec 2019: National Assembly files cross-appeal
The National Assembly filed a cross-appeal, arguing that the High Court erred in: (1) concluding that there was insufficient public participation prior to the enactment of the Statute Law (Miscellaneous Amendment) Act, 2019; (2) holding that the amendments to the Act could not be made through an omnibus Bill; and (3) in demonstrating obvious bias in taking an active part in the proceedings in violation of the National Assembly’s right to fair hearing.
4 Oct 2019: High Court judgment
Final judgment delivered, available here. See below for summary. The Attorney General filed promptly filed an appeal.
Summary of facts & issues
Petitioners opposed an attempt to amend the Merchant Shipping Act, which imposed restrictions on ship owners from providing certain services set out in Section 16. A Bill containing the amendment was rejected by the President, who suggested a modification which Parliament accepted. The Act was therefore amended to exempt government owned or controlled shipping lines from providing certain port services enumerated in Section 16 of the Act.
The Petitioners contended that in the year 2014 the government initiated a process for procurement of a firm to operate and manage part of port of Mombasa. However, the said process did not materialise. But sometime in 2019 the Petitioners learnt through the press that the government had entered into a Memorandum of Understanding (MOU) between the Ministry of Transport and the Mediterranean Shipping Company, whereby the later was granted rights to manage and operate the Container Terminal Two. The petitioners contend that the amendment of the Act as well as the MOU are illegal and unconstitutional for lack of public participation.
Prayers and Okoa Mombasa objectives
Litigation in this case was to emphasize the need for public participation, especially of those most affected in decisions that affect local resources.
The Petitioners understood the attempt to amend the law and allow the Mediterranean Shipping Company through the MOU with Kenya National Shipping Lines, as a means of privatizing CT2, ie channeling revenues from a thriving port facility paid for by taxpayers money into private pockets.
Summary of judgment
The judgment reaffirmed the centrality of public participation in legislative functions. There had to be deliberate steps by the 3rd respondent to achieve that constitutional imperative. The proposed amendment by the President, his reservations and recommendation should have been subjected to public participation before being enacted into law.
The Court declared that the amendment to Section 16 of the Merchant Shipping Act to introduce Section 16 (1A) to be in violation of Articles 10 and 118 of the Constitution and therefore null and void and of no consequence.
With regard to the Petitioners’ prayer that the Court find the memorandum of understanding between the Government and the Mediterranean Shipping Company unconstitutional, the Court declared that could not act on an MOU that had not been produced before it. No effort was made to obtain a copy of the MOU from the parent ministry, even if the ministry had declined to give a copy of the MOU to the petitioners after request, it would still have been open to the petitioners to apply for the production of the MOU under article 35 of the Constitution and the Access to Information Act No. 31 of 2016.
The petitioners had not demonstrated that the MOU had resulted in the violation of any constitutional principle or denial, violation, infringement or threat to their fundamental rights. For the court to interfere with the MOU without proof of such violation would therefore be to encroach on the special mandate of the Executive without any legal justification.