KTLN merger il­le­gal, vi­o­lates Coast lo­cals’ eco­nomic rights

The Star (Kenya) - - COMMENT KPA TAKEOVER - HUSSEIN KHALID @husskhalid Ex­ec­u­tive di­rec­tor, Haki-africa

This week, an agree­ment was ap­par­ently en­tered into merg­ing the Kenya Ports Author­ity, the Kenya Pipe­line Com­pany, the In­dus­trial and Com­mer­cial De­vel­op­ment Com­pany and the now al­most de­funct Kenya Rail­ways Co­op­er­a­tion.

is merger, which is com­mis­sioned un­der an Ex­ec­u­tive Or­der by the Pres­i­dent, is in­tended to form the Kenya Trans­port and Lo­gis­tics Network. For months now, this idea has been on the ta­ble but with no op­por­tu­nity for nei­ther the pub­lic nor stake­hold­ers to present their views. It has only been men­tioned in pass­ing.

is week, the peo­ple from the Coast spoke about the merger.

Com­mu­nity based or­gan­i­sa­tions, the busi­ness fra­ter­nity, women groups, trans­port sec­tor play­ers, re­li­gious and faith-based in­sti­tu­tions, hu­man rights de­fend­ers, youth as­so­ci­a­tions, grass­root move­ments, per­sons liv­ing with dis­abil­i­ties and civil so­ci­ety or­gan­i­sa­tions have col­lec­tively said no to the merger. is is be­cause it is clearly go­ing to fur­ther im­pov­er­ish lo­cal com­mu­ni­ties by killing their econ­omy.

e merger is premised on a false and il­le­gal deal that cir­cum­vents the law and by­passes Par­lia­ment by hid­ing be­hind ex­ec­u­tive or­ders to in­tro­duce sub­stan­tial changes in state cor­po­ra­tions, which are estab­lished by Acts of Par­lia­ment.

To cause such ma­jor shift in the man­age­ment and op­er­a­tions of en­ti­ties that con­trib­ute bil­lions of shillings an­nu­ally to the Ex­che­quer

with­out pub­lic par­tic­i­pa­tion or au­tho­ri­sa­tion by Par­lia­ment is a clear in­di­ca­tion that the in­tent or ob­jec­tive is sus­pect and must be de­mys­ti­fied.

The coastal econ­omy is estab­lished along two ma­jor eco­nomic ac­tiv­i­ties – the port and tourism.

is pro­posed merger will even­tu­ally mean the con­trol of op­er­a­tions and man­age­ment of the port will rest with KTLN (in ef­fect the ICDC board). e merger will also mean that the port’s man­ag­ing di­rec­tor will be re­cruited and ap­pointed by the ICDC. is means the port’s board will not be in con­trol of the MD nor the man­age­ment and the op­er­a­tions of the in­sti­tu­tion. e author­ity will there­fore be silently trans­ferred to the ICDC, which will be­come over­all in charge.

e merger fur­ther means the port man­age­ment and board will not have pow­ers to make any de­ci­sion on in­vest­ments, which now will rest on the ICDC board in Nairobi. Not­ing that the port is the most sta­ble fi­nan­cially, this merger will mean it will sub­si­dize the other part­ners in the merger, in­clud­ing KRC, which is owed bil­lions in the SGR deal.

e port’s funds will no longer be used in its de­vel­op­ment and ef­fi­ciency im­prove­ments to meet in­ter­na­tional stan­dards. Fur­ther, the port will turn into a depart­ment, lead­ing to down­siz­ing and re­trench­ment.

It is worth not­ing fur­ther that the merger was done in se­crecy and shrouded with mis­trust. e Con­sti­tu­tion pro­vides in Ar­ti­cle 10 that pub­lic par­tic­i­pa­tion on any such ven­ture is manda­tory. How­ever, in this case, there has been zero pub­lic con­sul­ta­tion and stake­hold­ers have not in any way been in­volved, ren­der­ing the merger un­con­sti­tu­tional.

It is also fresh in Kenyans’ minds that the courts re­cently de­clared the SGR deal was pro­cured il­le­gally. Why the state is seek­ing to pro­tect and pre­serve an il­le­gal deal at the ex­pense of other profit-mak­ing paras­tatals is puz­zling and flab­ber­gast­ing to say the least.

The coastal com­mu­nity has in the re­cent past suf­fered im­mensely from the il­le­gal SGR deal, which has seen loss of liveli­hoods and im­pov­er­ish­ment of com­mu­ni­ties. e com­mu­nity is in­deed very dis­turbed that de­spite all th­ese suf­fer­ings, the gov­ern­ment is again propos­ing fur­ther pun­ish­ment by tak­ing away the port from serv­ing and sup­port­ing coastal com­mu­ni­ties. With­out the port plough­ing back re­sources to the com­mu­nity, the peo­ple will have lost a ma­jor pil­lar of their econ­omy and will lead to fur­ther dis­en­fran­chise­ment of their eco­nomic rights as guar­an­teed by the Con­sti­tu­tion.

Coast com­mu­ni­ties have thus come out strongly to op­pose this un­con­sti­tu­tional and il­le­gal merger and de­mands it be with­drawn im­me­di­ately pend­ing con­sul­ta­tions and ne­go­ti­a­tions with all stake­hold­ers par­tic­u­larly the coastal peo­ple.

Fail­ure to this, the com­mu­ni­ties have made clear their in­ten­tions to chal­lenge the merger in court. e Coast peo­ple shall not re­lent un­til their eco­nomic rights are guar­an­teed.

/CHARLES MGHENYI

ICDC chair­man John Ngumi, Trea­sury CS Ukur Yatani, KPA chair­man Gen­eral (Rtd) Joseph Kib­wana and KPC chair­per­son Rita Okuthe af­ter sign­ing the Kenya Trans­port and Lo­gis­tics Network frame­work agree­ment at the port of Mom­basa on Septem­ber 8

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