Kenya Railways Corporation and the government, through the Office of the Attorney General has been forced to release documents relating to the multi-billion-dollar Standard Gauge Railway (SGR) project after the Court of Appeal upheld a High Court ruling on the same.
In its ruling, the appellate court sitting in Mombasa dismissed an appeal filed by the Attorney General, affirming that the State’s refusal to disclose documents related to the financing, procurement, construction, and management of the SGR project was unconstitutional.
“The court held that access to State-held information is a constitutional and democratic entitlement, subject only to narrowly construed and constitutionally justifiable limitations, and that the burden of proving any exemption rests squarely upon the State or public authority withholding the information,” the Office of the Ombudsman said in a statement.
According to the Ombudsman, the case was filed by Khelef Khalifa and Wanjiru Gikonyo, who sought the release of extensive records linked to the SGR project, including financing agreements, procurement contracts, feasibility studies, environmental impact assessments, operational agreements, and bilateral arrangements between Kenya and China.
Khelef and Gikonyo argued that despite the SGR project costing more than USD 4.5 billion in public funds and loans backed by Kenyan taxpayers, critical documents had remained inaccessible to the public.
The government, through the Attorney General and Kenya Railways Corporation, had declined to release the information, citing confidentiality clauses, national security concerns, foreign relations considerations, and exemptions under the Official Secrets Act and the Access to Information Act.
The matter was later escalated to the Commission on Administrative Justice, commonly known as the Office of the Ombudsman, before proceeding to the High Court.
In May 2022, Justice Anthony Mativo ruled that the refusal to disclose the documents violated Articles 10, 35, and 47 of the Constitution and ordered the State to release the information.
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However, the Attorney General challenged that decision at the Court of Appeal, arguing that disclosure would undermine Kenya’s national security, damage diplomatic relations with China, and expose the government to legal and financial consequences arising from breach of confidentiality obligations.
The appellate court rejected those arguments, ruling that the State had failed to provide sufficient evidence to justify withholding the information.
“The Court agreed with the High Court that the State must provide specific, substantive, and evidentiary justification demonstrating how the requested information falls within the statutory exemptions. The judges rejected the Attorney General’s generalized claims relating to national security, foreign relations, and commercial confidentiality, holding that ‘blanket denials’ and unsupported affidavits are legally insufficient.
“The Court stressed that restrictions based on national security cannot be used to shield the Government from embarrassment, conceal wrongdoing, or avoid public scrutiny. Rather, the State must demonstrate a real, substantial, and identifiable threat to a legitimate national security interest, and further show that the restriction is necessary, proportionate, and justifiable in a democratic society,” the Ombudsman’s statement added.
The court also faulted inconsistencies between Kenya Railways Corporation and the Attorney General regarding custody of the contracts.
While Kenya Railways claimed the Attorney General held the documents, the Attorney General denied being the custodian despite the law designating the office as the repository of treaties and international agreements entered into on behalf of the government.
The judges described the explanations as lacking credibility and unsupported by evidence.
On confidentiality clauses contained in the SGR agreements, the court ruled that contractual secrecy cannot override constitutional obligations of transparency and accountability, especially in matters involving public debt and taxpayer funds.
“The court observed that the SGR project had already been completed and the State had failed to demonstrate any actual or specific prejudice that would result from disclosure.
“Confidentiality clauses cannot override constitutional obligations of transparency and accountability, particularly where public debt, taxpayer obligations, and significant public expenditure are involved,” the Ombudsman further said.
The Court of Appeal further upheld the motive-blind principle under the Access to Information Act, affirming that citizens are not required to explain why they are seeking information from the State.
“Affirming the ‘motive-blind’ principle under Section 4(2) of the Access to Information Act, the Court held that citizens are not obligated to justify why they seek information from the State. The State, the Court observed, holds information as a constitutional custodian rather than a private proprietor,” the statement said.
Consequently, the court dismissed the Attorney General’s appeal in its entirety, upheld the High Court orders compelling disclosure of the SGR documents, and directed that each party bear its own legal costs due to the public interest nature of the case.
