NAIROBI, Kenya, Dec 14 – The High Court has given the National Treasury 45 days to disclose information on foreign debts, all sovereign bond agreements signed between the Kenyan government and other states, and details on how the proceeds were utilized.
Justice Lawrence Mugambi ruled on Friday that it is unconstitutional for the government to withhold information on treaties, agreements, or contracts signed between the Republic of Kenya and any other state, financial institution, or corporation.
He stated that such withholding violates the right to access information under Article 35(1) of the Constitution.
The judge emphasized that the public has a right to know how funds raised through sovereign bonds have been spent.
He directed that the information be provided to the Kenya Human Rights Commission (KHRC) and Wanjiru Gikonyo, who sued the government in 2022 for failing to disclose Kenya’s debt obligations.
“A declaration is hereby issued that the failure to provide information relating to sovereign bonds floated for and on behalf of Kenya in the past nine years by the National Executive is unconstitutional for infringing the principle of openness and financial accountability in matters of public finance as required by Article 201; and further, the principles of governance, integrity, transparency, and accountability as provided in Article 10(2) of the Constitution,” stated Mugambi.
Actual records
Mugambi directed that withholding such information violates the principles of openness and financial accountability in public finance.
“The CS insists the information is readily available in budget policy statements, but what is contained in those statements are proposals for borrowing, not records of actual borrowing,” the judge noted.
“My understanding is that the information the petitioners seek pertains to records of what has been borrowed, not proposals that may or may not have been actualized,” Mugambi explained.
The ruling follows a letter dated February 7, 2022, from KHRC and Gikonyo to the Cabinet Secretary for the Treasury.
The letter sought information on Kenya’s sovereign bondholders, including the beneficial ownership of issuing companies, among other details.
The petitioners argued that the CS’s refusal to disclose this information to Kenyans constitutes a violation of Chapter Six of the Constitution and other related laws.
However, the government did not supply the requested information, arguing that the petitioners failed to demonstrate the necessity of the documents sought.
The state also claimed that the information being sought was already available in the public domain.
According to the government, the annual budget policy statement provides details on all monies borrowed each year and is subject to public participation.
Additionally, the government argued that information regarding individual bondholders is protected under data protection laws and, therefore, could not be disclosed.
Source: capitalfm
