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KPA wants dispute over Mombasa Port management settled out of court

Kenya Ports Authority (KPA) has asked Mombasa High Court to dismiss a suit seeking to have the role of managing the port of Mombasa handled to the Mombasa County government.

The port’s agency argued in court the issue was an intergovernmental relations “controversy” which should be left to the county government and the national government.

Former Attorney General Githu Muigai, representing KPA, said the dispute resolution mechanism gives an opportunity for the two levels of governments to mediate the controversy surrounding management of the port.

The petitioners — William Odhiambo, Asha Mashaka and Gerald Lewa —have sued the Attorney General, Transport and Infrastructure Cabinet Secretary, Kenya Ports Authority and Kenya Railways Corporation as respondents.

The trio in their affidavits argue that under the 2010 Constitution, Mombasa County government being created under Article 6(1) is vested with power under the Fourth Schedule to manage county transport including harbours, excluding the regulation of international and national shipping and matters related thereto.

Muigai said the law does not give opportunity for private citizens such as the three petitioners to negotiate on the port’s operations.

He argued that the petitioners were required to forward their grievances to the county government who will then negotiate on their behalf.

Nani Mungai, also representing KPA, told the five-judge bench that the court should stay the matter as a similar case had been filed in a different court.

Nani said a matter filed by Container Freight Station questioning the validity of a contract between KPA and Kenya Railways Corporation to allow transfer of containers through the Standard Gauge Railway (SGR) is still active.

He added that if the court proceeds and determines the matter, there is a risk of court issuing two different directions which could cause confusion.

KPA said the suit should be stayed or dismissed pending the determination of the other matter. “The petitioner can seek to be enjoined in the other matter which seeks similar prayers,” he said.

Mungai added that the matter had been tackled when the court directed that operations of Kenya Ferry Services be handled by the national government.

The petitioners’ lawyer, Caroline Oduor, said the matter was about violation of human rights which has left many who depended on the port as destitute.

She added that the court needs to give an interpretation on whether the management of the port ought to be under the national or the county government.

“Dismissing the petition at this juncture will be premature because we need interpretation of the law,” she told the court.

The open skies treaty signed early this year during the African Union (AU) Summit on governance in Addis Ababa, Ethiopia is, however, expected to deal with  this connectivity issue and integrate countries.

The Single African Air Transport Market (SAATM) is a flagship project of the African Union Agenda 2063, an initiative to create a single unified air transport market in Africa, liberalisation of civil aviation and as an impetus to the continent’s economic integration agenda.

Other regional airlines that are set to benefit from the treaty include, Ethiopian Airlines, Rwanda Air and South African Airways, Precision Airlines even as statistics show that 80 per cent of air travel from Africa to the world is controlled by non-African Airlines.

It is hoped that a single aviation market, launched at the AU Summit, will help promote trade, cross-border investments and create an additional 300,000 direct and two million indirect jobs.

Under the umbrella of the “Single Market”, cross-border flights will be treated as domestic flights for taxation and regulatory purposes. Airlines will also be granted fifth freedom rights, meaning a flight from Johannesburg can stop by Nairobi and pick up passengers on its way to Cairo. This will all serve to drive ticket prices down and increase connectivity on the continent.

So far, 23 African countries, including South Africa, Nigeria and Kenya, out of 55 have subscribed to SAATM. Eligible airlines of the signatory countries are entitled to conduct their business into the markets and fully operate traffic rights provided for in the Yamoussoukro Decision.

The Yamoussoukro Decision of 1999 provides for full liberalisation in terms of market access between African States, the free exercise of traffic rights, the elimination of restrictions on ownership and the full liberalisation of frequencies, fares and capacities.

International Air Transport Association (IATA) welcomed the launch of the plan but called on the African Union to make sure the treaty and all that appertains to it are implemented. Past attempts to liberalise African air transport have proved difficult to implement.

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