Standard Media | 20 Febraury 2018
Kenya faces cases at International Centre for Settlement of Investment Disputes
By Mbatau wa Ngai
The recent changes at the State Law Office give the country a window of opportunity to clean up the legal team in charge of drafting and signing contracts with foreign and local investors. This proposition is borne out of Trade Principal Secretary Chris Kiptoo’s recent revelation that Kenya is facing cases at International Centre for Settlement of Investment Disputes (ICSID) with claims amounting to Sh334 billion.
The PS’s announcement that Kenya is developing an investment agreement and policy with clear rules to avoid repeating past mistakes, although welcome has come late. Only a few may have forgotten the Anglo-leasing fiasco which swallowed up Sh1.4 billion of taxpayers’ money four years ago. It has not been lost to analysts that the case that ICSID decided against Kenya arose from an agreement in which shadowy companies claimed to have supplied the State with a passport equipment printing system from France and a forensic science lab for the police during President Mwai Kibaki’s administration - who was finance minister when Kenya first got involved in a questionable pact with foreign investors to build a fertiliser plant.
The questionable firm, Ken-Ren, gobbled up millions of taxpayers’ cash when the case it filed at the ICSID was decided against the Government. Logic and prudence should have dictated then that the State institutes the measures PS Kiptoo is promising. The fact that the measures were neither instituted then nor after other similar cases including the Anglo-Leasing ones raises eyebrows and leads to the conclusion that there is collusion between the public officers who sign such lop-sided agreements and the foreign investors. This is buttressed by the realisation that many of the cases lost at the ICSID are either not defended or the defence put up is lackluster. The upshot of all this is that PS Kiptoo will need help to push through the changes to the laws and regulations governing foreign investment. It can also be expected that the putting up roadblocks will be based not just at the State law offices but also in Parliament and State House. There should also be no doubt that those blocking the exercise will be funded.
While Treasury spends millions of dollars in foreign capitals attempting to lure investors to loan the country billions of shillings, the latest such road-show is in America marketing a Sh151 billion and Sh303 billion Eurobond - matching what Kenya might lose in the cases filed against it in London. This is strengthened by the recognition that much of the funds borrowed will be used to pay off past debts.