Container Terminal 2 Privatisation case

A 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: High Court judgment Oct. 2019; Government has appealed

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

Interested Parties

  • Kenya Ports Authority

  • Mediterranean Shipping Company

  • Kenya Seafarers Welfare Association

  • Seafarers Union of Kenya

  • Mohammed Mawira

Current status

14 Oct 2021: Appeal hearing scheduled

An hearing in the appeal case is scheduled for 18 Oct 2021.

4 Oct 2019: High Court judgment

Final judgment delivered, available here. See below for summary. The government respondents have 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.

Share This