Court suspends State’s Naivasha cargo order

Naivasha Inland Container Depot on June 2, 2020. PHOTO | DENNIS ONSONGO | NATION MEDIA GROUP

What you need to know:

  • The government had indicated that the directive was meant to curb spread of Coronavirus.
  • Truck drivers also protested against the Naivasha ICD order, citing massive investment and job losses.
  • Activist Okiya Omtatah alleged that blocking out other transporters of cargo goods as stated in the impugned notice violates right to property.

The High Court has temporarily suspended the government’s directive on imported goods destined for three neighbouring landlocked countries.

Transport Cabinet Secretary (CS) James Macharia had ordered that the goods be transported via the Standard Gauge Railway to Naivasha Inland Container Depot from the port of Mombasa for clearance.

Lady Justice Pauline Nyamweya on Thursday issued the temporary order which effectively stops the directive issued by transport CS last month in a notice on social media platform requiring that goods headed to Uganda, Rwanda and South Sudan to be transported via SGR to the Naivasha Inland Container Depot.

SUSPENSION

“Leave granted herein do operate as stay and or suspension of the notice on transit cargo published by the transport Cs on May 22 on official Facebook page of the ministry, pending the substantive hearing of this matter,” said Justice Nyamweya.

While the government had indicated that the said directive which took effect as from the start of this month was meant to curb spread of Coronavirus pandemic, the judge said the suit filed by activist Okiya Omtatah challenging it meets the threshold of an arguable case.

 “The directives therein are therefore of a continuing nature and amenable to stay. In addition, there is need to stay the operation of the said notice until its legality is established, the stay orders sought are therefore merited,” the judge said.

When the directive was issued, Uganda backed out of the deal which had been agreed in a virtual meeting attended by Presidents of Kenya, Uganda, Rwanda and South Sudan.

The move was intended to cut the time taken from Mombasa to the Uganda border in a bid to reduce transmission of Covid-19 by truck drivers along the transport corridor.

Uganda had protested saying the move would not reduce human movement as truck drivers would still be required to pick the containers from Naivasha to the destinations.

JOB LOSSES

Truck drivers also protested against the Naivasha ICD order, citing massive investment and job losses.

According to Mr Omtatah, the directive has no basis in law and that there was no consultation from industry players, stakeholders or the public before the policy was implemented.

He argued that the government is not entitled to act outside the law on the basis of precaution to contain anything including the spread of Covid19.

He told court that before such a directive is issued, the government should have declared a state of emergency and that the Cs does not have powers to issue such a notice.

He also argued that while human rights allow state parties to suspend some rights, the African Charter on Human and Peoples Right does not contain a clause permitting suspension on human rights during an emergency.

He claimed that the emergency rule does not involve changes in the distribution of powers among the organs of the state in his case against the Cs and the Attorney General.

He alleged that blocking out other transporters of cargo goods as stated in the impugned notice violates right to property.

The notice indicated that taxman officers for Kenya, Uganda, Rwanda and South Sudan were to be deployed at Naivasha.

It also indicated that all cargo destined for those countries are to be transported via SGR to Naivasha or the Metre Gauge Railway to Tororo or Kampala.

All transit cargo that would pass through Naivasha would to be collected by partner states in Busia or Malaba while fuel products to be transported via pipeline to Kisumu, Port Bell or Jinja.

The case will be mentioned on July 22.