Someone Tell the Government to Divulge the Standard Gauge

Kenya is the land of drama. Every week we are treated to an array of dramas which doesn’t make sense to any rational man. Two petitioners (Khelef Khalifa and Wanjiru Gikonyo) moved to court seeking the government to make documents of the Standard Gauge Railway within the public domain.

So far since the project was completed the operations of the SGR has been shrouded in secrecy and the government doesn’t want the local citizen to get to know what is contained in the contracts that were signed between the national government and the People’s Republic of China.

The two petitioners in their petition asked the court to compel the government to make public the contract agreements and studies related to the construction and operations of the Standard Gauge Railway made public.

According to the petitioners keeping the documents confidential violates the law and discourages transparency in governance. They argue that documents related to the project and its financing have never been made public despite it being the most expensive project done by the government.

‘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,’ the petitioners argue. Now comes the most interesting bit.

Transport Principal Secretary Dr Joseph Njoroge in court documents stated that the agreements entered between the government and Chinese contractors over the construction of Ksh 450 billion Standard Gauge Railway have non-disclosure clauses.

To add more mockery to his statement he adds that if the orders in the petition are granted it would endanger national security and injure foreign relations between the states that the country has entered into bilateral agreements with and would stifle the successful implementation of the National Transport Policy.

At this rate am still wondering whether we still have a country.

So ideally if the contracts are availed to the public it would be in breach of the contractual terms of the agreements. The Principal Secretary further says that the petitioners have failed to articulate the necessity of the documents and beneficial actions in the interest of the public they are to undertake upon receiving the documents.

He is of the view that the respondents in the ongoing case discretion not to disclose the documents sought is constitutional and protected under Section 6 (10) and (20) of the Access to Information Act since the disclosure is likely to undermine national security.

‘The terms in the contract touch on foreign government information with implications on national security and foreign relations. The disclosure is also likely to cause substantial harm to the ability of the government to manage the economy of the country in the event of a breach of the terms of agreements with foreign nations or corporations,’ the affidavit reads.

Now let’s ponder on and try to put into perspective the claim made by the Principal Secretary in charge of the transport docket made. A non-disclosure agreement (NDA) is a legally binding contract that establishes a confidential relationship. The party or parties signing the agreement agree that sensitive information they may obtain will not be made available to any others. An NDA may also be referred to as a confidentiality agreement.

Non-disclosure contracts are common for businesses entering into negotiations with other businesses. They allow the parties to share sensitive information without fear that it will end up in the hands of competitors. In this case, it may be called a mutual non-disclosure agreement.

The NDA serves a purpose in a variety of situations. NDAs are generally required when two companies enter into discussions about doing business together but want to protect their interests and the details of any potential deal. In this case, the language of the NDA forbids all involved from releasing information regarding any business processes or plans of the other party or parties.

The keyword that I would like us to note with terrible exactness is businesses and not nations. Then I pose the question since when have public funds been used in a project and then you have a non-disclosure agreement in a contract? This means there is something that the government is hiding from the citizens.

There have been rumours that various assets of the government were put as collateral to the Standard Gauge Railway. Some of the government parastatals rumoured to be part of the collateral include Kenya Ports Authority and Kenya Airports Authority among other cash flowing government agencies.

The government has refuted this rumour but has refused by all means to reveal the contents of the contract the government signed with the Chinese. Who smells a rat? Putting a non-disclosure agreement in a publicly funded project is an assault on our intelligence.

The law frowns at that how I wish I could show you that. Article 201 of the Constitution vouchsafes the principles and framework on public finance. One of the principles includes: there must be openness and accountability including public participation in financial matters. How can we say there is transparency yet the government has refused to reveal the contents of the contract?

What do we as a people learn out of this scenario? ‘Perhaps the first lesson is that your interest in public affairs and the SGR is higher than your literacy about the Constitution of the Republic of Kenya.

The second lesson is that because appropriations have been made is that this episode confirms the fact that parliament is unwilling to do its job with powers granted by the Constitution,’ Kwame Owino notes.

Tony Gitonga raised a spectacular concern he still can’t figure out how Standard Gauge Railway became a national security issue. The government has been playing national security card to: withhold the documents on Ksh one billion paid by National Intelligence Service to MIS and lately the withholding information on the reason for failure to swear in judges.

How is the SGR contract intertwined with national security? Explain to me like a baby. Like seriously those things are a world apart and don’t correlate at all. This is just meant by the government to evade making the document available within the public domain. But why do they fear?

In a nutshell, the government should consider two things either disclosing the Standard Gauge Railway contract or disclosing the Standard Gauge Railway contract.

There are no two ways about this sorry about this. We have only one way on what the government can do. They show us the contract we would like to confirm our fear if they are true or false. High chances that the former may be right. That’s what I do think at the moment.

The Constitution of Kenya eschews confidential contracts for infrastructure projects like Standard Gauge Railway which demand public participation and accountability.

Kenyans have a right to know how their taxes are being spent, to participate in those decisions and to hold their government accountable.

We can’t participate if we don’t have the basic information with which to form our opinions. Let’s make it clear, the confidentiality of public finance documents goes against the principles of openness and accountability enshrined in the Constitution. We demand the Jubilee administration to disclose the contract, it is not a request any longer.






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