wrongturn
Elder Lister
Gava imesema haipangwingwi, no release of the documents
What you need to know:
Transport Principal Secretary Joseph Njoroge says agreements entered between the government and China for building the Sh450 billion Standard Gauge Railway have non-disclosure clauses.
In an affidavit, Dr Njoroge also says that it would be a breach of contractual terms if two activists seeking the disclosure of SGR documents get access to them.
“Upon receipt of the request for information from the petitioners (Ms Wanjiru Gikonyo and Khelef Khalifa) Kenya Railways Corporation responded and 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,” says Dr Njoroge.
If the orders sought are granted, he warns, that would endanger national security and injure foreign relations with the states with which Kenya has bilateral agreements and stifle the successful implementation of the national transport policy.
The PS also says the petitioners have failed to demonstrate why they need the documents and how releasing them would benefit the public.
The PS says the respondents’ discretion not to disclose the documents is constitutional and protected under Section 6(10) and (20) of the Access to Information Act as the disclosure is likely to undermine national security.
Dr Njoroge also argues that the petition is premature and an abuse of the court process.
Controversy and secrecy
Mr Khalifa had in two letters, dated December 16, 2019, and May 13, 2021, asked the Attorney-General and principal secretaries in the ministries of Transport and the National Treasury to provide copies of the agreements between the government and all service providers or third parties regarding the SGR.
Mr Khalifa also sought all contracts for feasibility studies relating to the construction, operation and servicing of the SGR and all documents relating to the expression of interest for the financing, construction, management and servicing of the railway prepared by the government.
The petitioners argue that keeping the documents confidential violates the law and discourages transparency in governance.
“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.
Fundamental information about the project’s financing, tendering process and construction has not been released to the public, they say.
Mr Khalifa and Ms Gikonyo argue that the capital-intensive project with a wide-ranging impact on public resources and citizens’ livelihoods was undertaken with no public participation and insufficient information on the implications on the public purse and other assets.
They want an order issued compelling the respondents to provide, at their cost, the information. The case will be mentioned on March 31.
nation.africa
a) Procurements undertaken pursuant to bilateral/multilateral agreements
These procurements are commonly referred to as ‘government-to-government’ procurements.
Government-to-government procurements are exempt from the provisions of the Act pursuant to Section 4(2) (f) which provides that procurements and disposal of assets under bilateral or multilateral agreements between the Government of Kenya and any other foreign government, agency, entity or multilateral agency are not procurements or asset disposals with respect to which the Act applies (the G2G Exemption). It is however important to note that government-to-government procurements are still required to comply with Article 227 of the Constitution of Kenya which requires that all procurements be undertaken in accordance with a system that is fair, equitable, transparent, competitive and cost-effective. This requirement has recently been confirmed by the court of appeal of Kenya.
As a result, the Government has taken advantage of the G2G Exemption to undertake a number of prominent projects such as the Standard Gauge Railway Project (which was financed through a concessional loan from the Peoples Republic of China) without any visibility around what sort of value for money assessment (if any) was carried out on the total cost of the project.
The New Regulations spell out the requirements for a procurement to qualify for the government-to-government exemption under the Act:
What you need to know:
- Transport PS says the petitioners have failed to demonstrate why they need the documents and how releasing them would benefit the public.
- Petitioners want fundamental information about the project’s financing, tendering process, and construction released to the public.
Transport Principal Secretary Joseph Njoroge says agreements entered between the government and China for building the Sh450 billion Standard Gauge Railway have non-disclosure clauses.
In an affidavit, Dr Njoroge also says that it would be a breach of contractual terms if two activists seeking the disclosure of SGR documents get access to them.
“Upon receipt of the request for information from the petitioners (Ms Wanjiru Gikonyo and Khelef Khalifa) Kenya Railways Corporation responded and 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,” says Dr Njoroge.
If the orders sought are granted, he warns, that would endanger national security and injure foreign relations with the states with which Kenya has bilateral agreements and stifle the successful implementation of the national transport policy.
The PS also says the petitioners have failed to demonstrate why they need the documents and how releasing them would benefit the public.
The PS says the respondents’ discretion not to disclose the documents is constitutional and protected under Section 6(10) and (20) of the Access to Information Act as the disclosure is likely to undermine national security.
Dr Njoroge also argues that the petition is premature and an abuse of the court process.
Controversy and secrecy
Mr Khalifa had in two letters, dated December 16, 2019, and May 13, 2021, asked the Attorney-General and principal secretaries in the ministries of Transport and the National Treasury to provide copies of the agreements between the government and all service providers or third parties regarding the SGR.
Mr Khalifa also sought all contracts for feasibility studies relating to the construction, operation and servicing of the SGR and all documents relating to the expression of interest for the financing, construction, management and servicing of the railway prepared by the government.
The petitioners argue that keeping the documents confidential violates the law and discourages transparency in governance.
“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.
Fundamental information about the project’s financing, tendering process and construction has not been released to the public, they say.
Mr Khalifa and Ms Gikonyo argue that the capital-intensive project with a wide-ranging impact on public resources and citizens’ livelihoods was undertaken with no public participation and insufficient information on the implications on the public purse and other assets.
They want an order issued compelling the respondents to provide, at their cost, the information. The case will be mentioned on March 31.
Government explains why SGR contract is secret
PS Njoroge says petitioners have failed to demonstrate why they need the SGR contract documents.
nation.africa
a) Procurements undertaken pursuant to bilateral/multilateral agreements
These procurements are commonly referred to as ‘government-to-government’ procurements.
Government-to-government procurements are exempt from the provisions of the Act pursuant to Section 4(2) (f) which provides that procurements and disposal of assets under bilateral or multilateral agreements between the Government of Kenya and any other foreign government, agency, entity or multilateral agency are not procurements or asset disposals with respect to which the Act applies (the G2G Exemption). It is however important to note that government-to-government procurements are still required to comply with Article 227 of the Constitution of Kenya which requires that all procurements be undertaken in accordance with a system that is fair, equitable, transparent, competitive and cost-effective. This requirement has recently been confirmed by the court of appeal of Kenya.
As a result, the Government has taken advantage of the G2G Exemption to undertake a number of prominent projects such as the Standard Gauge Railway Project (which was financed through a concessional loan from the Peoples Republic of China) without any visibility around what sort of value for money assessment (if any) was carried out on the total cost of the project.
The New Regulations spell out the requirements for a procurement to qualify for the government-to-government exemption under the Act:
- where a government-to-government procurement is financed through a negotiated loan, the Public Procurement and Asset Disposal will apply unless the agreement specifies the procurement and asset disposal procedures to be followed;
- procurement professionals from the respective procuring entity must be involved during the negotiations of the bilateral/multilateral agreement for the purposes of ensuring that the public procurement and asset disposal interests of Kenya are considered; and
- local content requirements – unless an exemption is issued by the National Treasury, the tender documents for a government to government procurement must contain requirements that the tenderer shall:
- include a plan for technology transfer to locals;
- plan to reserve 50% employment opportunities for Kenyans; and
- 40% of inputs must be sourced locally.
