BY SAM ALFAN.
Indian company Adani Enterprises has suffered a blow after the High Court froze a deal to lease the Jomo Kenyatta International Airport (JKIA) for 30 years
Justice John Chigiti out on hold the deal following a petition by Kenya Human Rights Commission and Law Society of Kenya, challenging the leasing plan.
LSK and KHRC oppose the deal arguing it was done in violation of the constitution and therefore a nullity.
The two organisations seek to prohib Kenya Airport Authority, Airport Infrastructure PLC, Global Airport Operator plc, Adani Enterprise ltd, Adani Airport Holding limited or their agents or any person from implementing or further implementing or acting on the privately initiated proposal for development and operation of JKIA submitted in March 2024 by Adani Airport Holdings Ltd.
“An order of mandamus directing Kenya Airports Authority to supply the Applicants with the information sought in the letters of 23 July 2024 and 1 August 2024 within 14 days of the court’s order,” seeks the legal profession body and KNHCR.
LSK submitted that the deal risk of illegality and wastage of public funds looms large.
They add that the danger of violating the Constitution is real; the urgency of addressing the issue is self-evident.
The LSK said JKIA is a strategic and profitable national asset for it to be leased to the Indian conglomerate Adani and its subsidiaries for 30 years.
They said the government of Kenya can independently raise the estimated 1.85B USD or Sh238 billion needed to expand JKIA without leasing it for 30 years.
“Thus, the Adani proposal is unaffordable, threatens job losses, has a disproportionate aggregated fiscal risk exposure to the public, and offers no value for money to the taxpayer,” says LSK and KHRC.
LSK and KHRC argue that leasing the strategic and profitable JKIA to a private entity is irrational under Article 47 of the Constitution and violates the principles of good governance, accountability, transparency, and prudent and responsible use of public money under Articles 10 and 201.
On 23 July 2024 and 1 August 2024, LSK and KHRC said it unsuccessfully wrote to JKIA, seeking information under Article 35(1) and (3) of the Constitution of Kenya and section 4 of the Access to Information Act, 2016.
KAA has ignored their’ request for access to information, thus violating their right to fair administrative action and right of access to information under Article 47 and 35 of the Constitution.
“KAA’s refusal to supply the information sought further violates Articles 10 of the Constitution on transparency and accountability besides Article 201(a) on openness and accountability including public participation in financial matters.Applicants have reason to believe that the information does not exist or that KAA is working backward to fill in the gaps,” adds LSK and KHRC.
Court heard that Adani submitted the proposal on 1 March 2024.
However, the Cabinet only approved the National Aviation Policy and the JKIA Medium- Term Investment Plan on Tuesday, 11 June 2024, some three months later. This Plan proposes upgrading the passenger terminal, runway, taxiway, apron, and airside facilities in keeping with global aviation trends-the subject of the Adani proposal.
“The implication is that contrary to section 40(2)(a) of the PPPA, the Adani proposal when submitted in March 2024, did not align with any national infrastructure priorities or meet a demonstrated societal need. The timing also points to a possible collusion between the Respondents to tip off and give a head start to Adani on the planned expansion of JKIA contrary to Article 10 on good governance,” state LSK and KHRC.
They add that KAA violated section 41 of the PPPA by evaluating the Adani proposal before due diligence.
“The Adani Feasibility Report discloses that the Concession Agreement was scheduled to be signed on 1 May 2024 and that KAA had to fulfilled the conditions for the concession by 31 October 2024,” says petitioners.
On 24 July 2024 KAA represented to the public that the Adani proposal “would be subjected to technical, financial, and legal review” in compliance with the PPPA. On 30 July 2024, Musalia Mudavadi confirmed that the Adani proposal was undergoing “requisite due process, reviews, and negotiations”.
The LSK added that on 2 September 2024 Adani staff were spotted at JKIA conducting a stock-taking exercise.
On 4 September 2024 Alfred Mutua as CS for Labour and Social Protection met aviation workers at JKIA in a bid to persuade them to take up the proposal to hand over their job contracts to Adani.
