Attorney-General Kihara Kariuki is set to appeal a High Court ruling directing the government to disclose details of the Standard Gauge Railway (SGR) contract agreements.
Through an appeal notice filed by senior State counsel Eunice Mvoi, Kariuki says the government is dissatisfied with the entire judgment made by Justice John Mativo on May 13th, arguing that the two petitioners had not exhausted all means of dispute resolution available and that the petition was not properly before the court.
The petitioners, Khelif Khalifa and Wanjiru Gikonyo, argued that the government’s failure to disclose details about the contract was a violation of their right to access to information, which is enshrined in the Constitution.
Khalifa and Wanjiru contended that the $4.5 billion project was shrouded in secrecy and that no public participation was done despite the project being a capital-intensive one.
Justice Mativo agreed with the petitioners, stating that the failure by the Attorney-General, the Treasury, and Transport PSs to provide information on the contracts and agreements related to the construction and operations of the SGR violated the right to access information.
Transport Principal Secretary Dr. Joseph Njoroge, one of the respondents in the case, told the court that the agreement signed between Kenya and the Chinese lender over the construction of the SGR contains non-disclosure clauses. He averred that it would be in breach of contractual terms of the agreement if the petitioners were supplied with copies of the contract.
He submitted that if orders sought were granted, it would endanger national security, injure foreign relations between Kenya and China and hinder the implementation of the National Transport Policy.
But the judge ruled that any restriction on information that a government seeks to justify on grounds of national security must have a genuine purpose and demonstrable effect of protecting a legitimate national security interest.
Kenya borrowed up to Sh326 billion from the Chinese government to build the 480-kilometer railway line from Mombasa to Nairobi which was later extended to Naivasha at a reported cost of Sh150 billion.