Kenya: Why is the government hiding its Chinese loan contracts?

By Cliff Mboya
Posted on Wednesday, 8 September 2021 11:38

A cargo train leaves from the port containers depot in Mombasa, Kenya, to Nairobi on 30 May 2017. (AP Photo/Khalil Senosi, File)

A growing number of Kenyans are becoming increasingly incensed with Attorney General (AG) Kihara Kariuki for his determination to challenge activists’ demands in court for disclosure of the $3.2bn Standard Gauge Railway (SGR) contract with China. The move didn’t go down well with many people who felt betrayed and wondered why the government’s top lawyer is so determined to keep this information locked up and he is acting in violation of the same constitution that he’s supposed to uphold.

The Kenyan constitution under article 227(1) and the public procurement and disposal act 2015 stipulates that public projects must be made public and requires public participation in the process. The president seemed to agree with this position in 2019 when he promised to make the contract public, only to make a u-turn and go numb on it. Last week’s events suggest that he might have had a session with the AG.

Legal issues aside, the fact that the contract is being kept from the same people that are supposed to bear the burden of the loan raises more questions than answers. The obvious question is why is the SGR project shrouded in so much mystery?

Kenyans may never know the contents of the SGR contract but they do know for sure that those involved cannot be trusted with their interests.

Playing devil’s advocate here, let’s assume it is in citizens’ best interest that the contract remains confidential. Why hasn’t the AG then come before the public and the National Assembly to explain why? No one outside of an elite circle within the State House has even the faintest idea as to why they’re so afraid to tell us the truth about this loan that we, the people, are obligated to pay!

We know from a recently released report by a consortium of researchers in the US and Europe that Chinese loan terms include strict confidential clauses and non-disclosure agreements with lending countries. But those same contracts, according to the research, also include clauses that allow for public disclosure if that’s what’s required by law.

So, it’s too easy to simply put all of the blame for this solely on the Chinese creditor. Our own representatives need to be held accountable too for why they’re signing contracts and not providing the disclosure that’s required by our own laws and constitution.

Welcome to the real world in Kenya. A world where questions are rarely answered, particularly when it touches on the personal interests of the country’s ruling elite where too many act with total impunity, secure knowing that the worst that can happen is they’ll get voted out of office and never face any consequences for their misdeeds.

It is this lack of accountability that puts to question the very concept of Kenyan agency in international relations. How can a country like Kenya get what it deserves from the international system when its own leaders behave so recklessly? Such arrangements between foreign governments and the political elite only reinforce the widely-held belief that foreign countries like China too often secretly collude with powerful interests at the expense of the rest of us who are left to pay the bill.

It is a stark reminder of the endemic institutional weaknesses that continue to plague too many African governments and the long road towards democratic maturity and accountability.

Kenyans may never know the contents of the SGR contract but they do know for sure that those involved cannot be trusted with their interests.

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