Show us the Contracts: Court orders government to release SGR documents in response to Okoa Mombasa petition

May 16, 2022

The High Court in Mombasa has ordered the government to release details related to the construction and operation of the Standard Gauge Railway (SGR) in response to a petition filed by Okoa Mombasa and The Institute for Social Accountability (TISA).

The KES 450 billion (USD 4.2 billion) SGR is the most expensive infrastructure project in Kenya’s history and was financed mostly via loans through the Export-Import Bank of China. Despite the enormous cost to Kenyan taxpayers, the contracts, agreements and studies related to the project and its financing have never been made public.

Okoa Mombasa has been attempting since 2019 to obtain the SGR documents through Access to Information Act requests, but the government has refused to comply, citing confidentiality clauses and issues of national security.

Our petition – which was formally filed by Khelef Khalifa of Muslims for Human Rights (MUHURI) and Wanjiru Gikonyo of TISA – argued that the Constitution prohibits confidential contracts for public infrastructure projects, which by law require public participation and accountability.

Judge John M. Mativo agreed, ruling that the government’s refusal to release information about the SGR is a violation of Kenyans’ Constitutional rights.

“Access to information held by the state is important to promoting transparent and accountable government, and people‘s enjoyment of their rights under the Bill of Rights depends on such transparent and accountable government,” Judge Mativo wrote in a 32-page ruling.

Judge Mativo added: “Public bodies have a constitutional duty to give people access to information so that they can exercise their rights. When they try to subvert a person’s constitutional right by being unresponsive and playing possum their conduct should be deprecated. In conclusion, I find and hold that this Petition succeeds.”

Okoa Mombasa believes that publicly releasing the contracts will foster more informed public participation and debate around the SGR and its impact, as well as more accountability and openness in public finance. According to government statistics, the SGR has operated at a financial loss since its inception – meaning its operations are not generating funds to help pay back the loans as planned.

Okoa Mombasa urges the government to forgo an appeal and immediately comply with the High Court’s order.

Read the judgment and other case documents here:

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