The Kenya Electricity Transmission Company (KETRACO) has recently come under public scrutiny following its refusal to disclose details regarding a potential partnership agreement with Indian conglomerate Adani Energy Solutions. This development follows concerns raised about the company’s involvement in critical infrastructure projects in Kenya, particularly as Adani’s sister company faces significant opposition to its proposed lease agreement for Jomo Kenyatta International Airport (JKIA).
This refusal to provide information has raised questions about transparency, governance, and public participation in decision-making processes regarding large-scale infrastructure deals in Kenya. With civil society organizations and law firms pressing for disclosure of critical information, the situation underscores the challenges surrounding access to public information in a developing democracy like Kenya, where the demand for accountability is often met with bureaucratic resistance.
Background: The Controversial Partnership
The reported partnership between KETRACO and Adani Energy Solutions has attracted interest because of the high stakes involved in Kenya’s energy and infrastructure sectors. KETRACO, a state-owned company responsible for building and operating high-voltage transmission lines, plays a vital role in Kenya’s energy landscape. Any large-scale partnerships involving the company, especially with foreign corporations, are bound to attract public attention due to their potential impact on the country’s economy and national interests.
Adani Energy Solutions is part of the Adani Group, a conglomerate with diverse interests ranging from energy and resources to logistics and agribusiness. The group has faced criticism globally, particularly for its environmental and labor practices, raising further concerns about its involvement in Kenya’s critical energy infrastructure.
Concerns have been amplified by Adani’s controversial involvement in another project: the proposed lease of JKIA, Kenya’s busiest and most critical airport. This project has faced opposition from various stakeholders, including unions and civil society groups, who argue that handing control of such a strategic asset to a private foreign company could compromise Kenya’s national interests.
The Request for Information
Amidst these growing concerns, IC Law Advocates, a prominent law firm in Nairobi, issued a formal request to KETRACO for access to information regarding the partnership agreement with Adani Energy Solutions. The request was made in line with Kenya’s Constitution, which guarantees the right of citizens to access public information, as well as the provisions of the Access to Information Act, 2016.
In the letter dated September 11, 2024, IC Law Advocates demanded full disclosure of the project agreements related to the partnership. The firm specifically requested details on the following:
- The nature of the partnership agreement between KETRACO and Adani Energy Solutions.
- The financial capacity of Adani Energy Solutions as the tendering company.
- The tendering process that was undertaken for the project.
- The legal, regulatory, social, economic, and commercial viability of the project.
- Public participation in the decision-making process.
- Approval from the Attorney General’s Office for the project.
- Letters of support, credit guarantees, or risk guarantees issued by relevant ministries in support of the project.
IC Law Advocates emphasized that this information is critical for ensuring transparency and accountability in public projects, especially given the scale and potential impact of the partnership on Kenya’s energy sector. The law firm gave KETRACO 14 days to provide the requested information, warning that failure to comply would result in legal action to enforce their right to access public information.
KETRACO’s Response
In response to the letter from IC Law Advocates, KETRACO Managing Director John Mativo issued a statement indicating that the request for information is still under consideration and, therefore, falls under the purview of Section 4(1) of the Access to Information Act. This section allows public bodies to defer the release of certain information if it is still under review or consideration.
Mativo’s letter acknowledged the receipt of the request but stated that no final decision had been made regarding the disclosure of the information. He added that KETRACO was still reviewing the issues raised and that, once the review process was complete, the information “may” be made available to the law firm.
Mativo further invoked Section 6(1) of the Access to Information Act, which provides exemptions to disclosure under certain circumstances. This section allows public bodies to withhold information if it would compromise national security, hinder due process in legal matters, or infringe on the privacy of individuals involved.
“We undertake that after due consideration and finalization of the process, the requested information may be availed,” Mativo stated, leaving room for the possibility that KETRACO could ultimately decline to provide the information.
Legal and Constitutional Implications
KETRACO’s refusal to immediately disclose the requested information raises significant legal and constitutional questions, particularly regarding the right to access public information. Kenya’s Constitution, enacted in 2010, guarantees the public’s right to access information held by the government and its agencies, a critical tool in ensuring transparency and accountability in governance.
The Access to Information Act, 2016, further operationalizes this right by providing clear procedures for requesting information from public bodies. The Act requires public agencies to provide the requested information within 21 days unless there is a compelling reason to withhold it.
Section 6 of the Act does provide certain exemptions, but these are meant to be applied narrowly and only in cases where disclosure would cause substantial harm to national security, legal proceedings, or personal privacy. Critics argue that KETRACO’s reliance on Section 6 to withhold information may be unwarranted in this case, as the request relates to a public infrastructure project and involves public funds.
Moreover, the issues raised by IC Law Advocates – such as the financial capacity of Adani Energy Solutions and the tendering process – are matters of public interest, and withholding this information could fuel further speculation and mistrust regarding the partnership.
Public Participation and Accountability
Another key issue raised by IC Law Advocates is the lack of public participation in the decision-making process surrounding the partnership. Under Kenya’s Constitution, public participation is a fundamental principle of governance, especially in matters involving the use of public resources.
Large infrastructure projects, such as those undertaken by KETRACO, have far-reaching social, economic, and environmental impacts. As such, the public has a right to be involved in decision-making processes to ensure that these projects align with national development goals and do not compromise public welfare.
The law firm’s request for details on public participation underscores concerns that the partnership with Adani Energy Solutions may have been negotiated behind closed doors, without adequate input from key stakeholders such as local communities, civil society organizations, and environmental groups.
If the project lacks proper public scrutiny, it could face opposition similar to the resistance Adani has encountered over its involvement in the JKIA lease deal. Transparency, therefore, is not just a legal obligation but also a practical necessity for ensuring the long-term success and sustainability of large-scale public projects.
Broader Implications for Kenya’s Energy Sector
The partnership between KETRACO and Adani Energy Solutions, if confirmed, could have significant implications for Kenya’s energy sector, which is undergoing rapid transformation as the country seeks to meet growing energy demand while transitioning to cleaner and more sustainable sources of power.
Adani Energy Solutions, part of the Adani Group, has extensive experience in building and operating energy infrastructure, particularly in renewable energy. Its involvement in Kenya could bring valuable expertise and investment to the country’s energy sector. However, the company’s controversial track record in other countries has raised concerns about its environmental and labor practices, leading to calls for greater scrutiny of its operations.
In Kenya, where public infrastructure projects have historically been plagued by allegations of corruption and mismanagement, the lack of transparency surrounding the KETRACO-Adani partnership could undermine public trust in the project. It also raises questions about the government’s commitment to ensuring that foreign investments align with Kenya’s development goals and do not jeopardize national interests.
Conclusion
As KETRACO continues to withhold information about its reported partnership with Adani Energy Solutions, pressure is mounting from civil society organizations and legal advocates for greater transparency and accountability in public infrastructure projects. The legal battle over access to information is likely to have broader implications for governance in Kenya, particularly in sectors where public resources and foreign investments are involved.
The outcome of this case could set an important precedent for how the government handles public information requests in the future, and whether citizens will have the necessary tools to hold their leaders accountable for decisions that affect the country’s development trajectory.
