Kenyan taxpayers could face substantial costs if there are disruptions or terminations related to the Adani-Jomo Kenyatta International Airport (JKIA) deal.
The agreement between
Adani Airport Holdings Ltd and the Kenya Airports Authority (KAA) specifies that any interruptions caused by court actions, parliamentary decisions, or protests following the feasibility study will require Adani to be compensated for losses and anticipated profits.
If protests persist or if Parliament enacts laws detrimental to the Adani-JKIA deal, Adani will seek compensation for damages, lost returns, and investment costs.
The agreement designates such protests or government-controlled disruptions as "Material Adverse Government Actions (AGA)," which could negatively impact the company's operations or profitability.
AGA refers to any act or omission by any government entity in Kenya occurring after the signing date that materially affects Adani's ability to exercise or perform any of its material rights and obligations under the agreement and/or the costs or profits associated with such performance, limited to the circumstances specified in the head of terms agreement," states the confidential document.
Updated after a joint call on August 23, 2024, but dated August 13, the
terms permit Adani to terminate the deal and demand compensation for damages, lost returns, and investment costs if the government fails to protect its business.
“If the Material Adverse Government Action is ongoing and prevents a party from meeting most of its obligations for six consecutive months, either party can terminate the agreement due to ‘Prolonged Material Adverse Government Action,’” explains the agreement.
Any civil commotion, boycott, or political agitation by Kenyans that prevents the collection of airport charges by Adani for more than seven days in a year will also be compensated.
The agreement stipulates that disputes will be resolved through international arbitration “in London, but the hearings will be held in Mauritius’’.
Other actions leading to compensation include changes in laws, regulations, or policies that make it more difficult or expensive to operate.