What has been true in other countries such as Sri Lanka, and Zambia, now threatens to unfold in our very own backyard.
The port of Mombasa is not just an economic hub for the country, but also a landmark; a national treasure. It is a symbol of Kenya’s glimpse at the world, and the world’s glimpse into Kenya. Since, and even before Vasco Da Gama, it has served, and continues to serve as the gateway to not just the country, but to the region as well.
However, it is now emerging that the contract the government signed with the Chinese leaves assets belonging to the port’s parent agency, the Kenya Ports Authority, open to confiscation in the event of defaulting on the debt.
In a report tabled in Parliament, the Auditor General revealed that the assets of Kenya Ports Authority were used as collateral for the Sh363.96 billion Standard Gauge Railway loan.
Admitting this officially for the first time that Kenya waived its immunity in the event of a legal dispute linked to default of servicing the loan, the auditor revealed that the borrowers – KPA and Kenya Railways Corporation – gave up claim to any immunity from legal proceedings or any of their assets.
It will be remembered that in an interview with members of the press in the December of 2018, the president promised to share with the fourth estate, and ntv’s Mark Maasai specifically, details of the contract, “even tomorrow”. More than three years later, this is yet to happen.
The provision of the contract stating that KPA’s assets may be confiscated is in respect of any cases filed today or in future in connection with the agreement.
“Under this clause (17.5) the borrowers – KPA and KRC – agree that any proceedings against them or their assets in connection with the agreement, no immunity from such proceedings shall be claimed by it or with respect to its assets.
The report, which has just surfaced despite being signed by former Auditor General Edward Ouko in April 2019, further reads that,
“…and they irrevocably waive any right of immunity whether characterised as sovereign immunity or otherwise,”