Court case highlights the role of media in holding public officers to account
The groundbreaking case pits the state monopoly Kenya Electricity Generating Company (KenGen) and its long-serving CEO Edward Njoroge against the Nairobi Law Monthly magazine published by lawyer Ahmednassir Abdullahi. Hearing commences on 6 November.
Nairobi Law Monthly resumed publication in 2010 after Ahmednasir bought the title from Imenti Central Member of Parliament Gitobu Imanyara. Imanyara, a human rights lawyer, award-winning journalist and politician, founded the monthly in 1982, one of the few publications that boldly and consistently fought against the dictatorship of former President Daniel arap Moi throughout the 1980s.
In October last year, Nairobi Law Monthly ran an exclusive cover story alleging massive tendering irregularities in multi-million-dollar contracts awarded by KenGen, the country’s power generating monopoly, to a Norwegian company with no track record of handling large infrastructure projects.
The story revealed that Green Energy Group AS of Norway claimed to have a subsidiary in India, Hindustan Turbo Manufacturers, with the capacity to make and install multiple miniature power plants known as wellhead generators.
The Norwegian company was awarded two contracts. The first was an $8.2 million (about Sh780 million) contract in December 2009 to supply a wellhead for one of the geothermal wells in Olkaria, Nakuru County.
Subsequently, the company was awarded a massive $90 million (about Sh8.5 billion) contract to supply and install 14 additional wellheads.
The Nairobi Law Monthly report said the manner in which the Norwegian company was contracted was not above board. More worryingly, the first mini-power plant to be delivered by Green Energy had turned out to be defective.
But even after delivering defective machines for the first well, KenGen still went ahead and awarded Green Energy a bigger contract to supply and install 14 more wellheads. The magazine’s investigations exposed other questionable dealings at KenGen going back several years.
Following publication of the report, on 5 October 2011 lawyers acting for KenGen wrote to Ahmdenasir denying all the allegations and threatening legal action for defamation unless the magazine offered ‘a full and unequivocal public apology and retraction.’
Ahmednasir responded by stating that Nairobi Law Monthly stood by its story. All its claims were based on documents exclusively obtained by the magazine, he said.
Invoking Article 35 of the constitution that guarantees everyone the right to access information, Ahmednasir requested KenGen to supply him with copies of all the official documents and any information in their custody relating to the questionable contracts between the public firm and Green Energy Group AS of Norway and several other companies.
His argument was that he needed to compare the official documents with those that his magazine had relied on for its story and therefore be able to determine whether the apology and retraction demanded by KenGen had any legal basis.
The publisher further stated that if he had access to the correct documents it would help Nairobi Law Monthly to publish more stories on the same subject, promote accurate reporting and reduce publication of false and potentially defamatory statements in its subsequent editions.
But KenGen declined to supply the requested information, arguing that they were not under any obligation to release the documents, nor was publisher Ahmednasir entitled to them. In addition, the company published adverts in the local dailies denying any wrong doing and disparaging the Nairobi Law Monthly.
Ahmednasir moved to court to seek redress for violation of his fundamental rights and freedoms as enshrined in the Bill of Rights and several other articles of the Constitution of Kenya 2010.
Nairobi Law Monthly’s case is that KenGen is a public body funded by taxpayers and holds official information in trust for all the citizens. The firm is constitutionally obligated to share that information with citizens when they ask for it.
Second, many questions had been raised by the magazine (which is a legal person) and parliament about the contracts entered by KenGen. In order to fairly interrogate the firm’s actions in the interest of transparency and accountability in the conduct of public affairs, KenGen should release the relevant information as requested.
Third, by refusing to release that information, KenGen was acting in a despotic manner to shield itself from public scrutiny. It was also interfering with freedom of the media by attempting to limit what Nairobi Law Monthly could publish. This contravened media freedom as guaranteed by the constitution.
Fourth, the matter of the contracts was of great public interest as parliament’s Departmental Committee on Energy, Communication and Information had grilled KenGen’s top officials, including CEO Njoroge, and the permanent secretary in the Ministry of Energy, Patrick Nyoike, over the issues raised in the October 2011 issue of the magazine.
The parliamentary committee had even dismissed some of the KenGen contracts as being as big as the Anglo-Leasing procurement scandal in which Kenya had lost billions of shillings. Thereafter, PS Nyoike had dismissed entirely a contract of Ksh40 billion which was exposed in the Nairobi Law Monthly cover story.
And fifth, KenGen had proceeded to sign other shady deals in which Kenyans lost billions of shillings. For example, on 8 November 2011 the company announced a new contract worth a staggering US$ 1.3 billion to generate an additional 280 watts of electricity.
But documents obtained by Nairobi Law Monthly showed that the new contractors had paid kickbacks totalling US$ 40 million to very powerful individuals to get the contract.
In comparison to the US$1.3 billion KenGen deal to generate 280 watts, Ethiopia’s massive Gibe 3 Dam cost US$ 1.7 billion and will generate 1,870 watts.
Ahmednasir accuses KenGen of a history of irregular tendering to line the pockets of powerful individuals and wants the court to compel the company to release the details of its contracts to facilitate public scrutiny.
He argues that Chapter 6 of the constitution provides for the values of openness, responsiveness, accountability and transparency on the part of public officers, but that KenGen ‘are opaque in their dealings, operate in a secret and shadowy manner and are completely opposed to the open and transparent society that the new Constitution provides for’.
Ahmednasir states that the freedoms of speech and of the media are essential to the fight against public corruption. But these freedoms would be meaningless if citizens had no access to information held by public bodies. It would be impossible to hold those bodies and their officials to account, he says in papers filed at the High Court.
‘[…] the right to access and receive information helps the citizenry to participate in democratic governance of their country. […] it is the contention of the applicant that the right to access and receive information contributes to and is the foundation of substantive constitutional democracy of any country that adheres to the rule of law.
‘[…] the right to access information is a pre-condition for a number of rights. Freedom of expression is meaningless if the right to access information is curtailed.
‘[…] the ability of the applicant or any individual to actively participate in political, economical and social debates that are relevant to the broader population of the country, as well as the need and possibility to place such issues on the national agenda, is directly linked to the ability to obtain or access the relevant information.’
Kenyans will be eagerly watching this case, which will no doubt have great implications for the enjoyment of media freedom and related rights under the new constitution and the fight against the scourge of corruption.