The Dock Workers Union (DWU) has challenged an Executive Order issued by President Uhuru Kenyatta seeking to have three State logistics firms carry out their operations under Kenya Transport and Logistics Network.
The Executive Order No 5 of 2020 (Revised) issued on August 7 is for the framework, management, coordination and integration of public port, rail and pipeline services currently being undertaken by Kenya Ports Authority, Kenya Railways and Kenya Pipeline Company.
DWU wants a declaration that the order purporting to organise and set out KPA and independent State corporations under functions of ministries, government departments and other constitutional bodies specifically KTLN is unconstitutional, null and void ab initio (from the beginning).
In a suit filed under a certificate of urgency at the High Court in Mombasa, DWU also wants to have the Executive Order that purports to organise the government and set out KPA under the Ministry of Finance or Treasury quashed.
Through Mugoye and Associates Advocates, DWU has sued the Attorney-General and Head of Public Service and has named KPA, KRC and KPC as interested parties in the suit.
According to DWU, the effect of the Executive Order is to place independent government parastatals under the Ministry of Finance without amending or repealing the State Corporations Act, KPA Act and KRC Act.
“The proposed privatisation of all ports under the merger of KPA, KRC and KPC is a veiled way of privatising three distinct entities without Parliament’s approval contrary to the Acts creating them and the constitution,” argues DWU in its suit documents.
It further argues that in purporting to establish KTLN, the Executive Order is ultra vires (acting beyond legal powers) of the various Acts of Parliament that provide for the management of State corporations and agencies.
“No public participation was conducted in considering the petitioner’s (DWU) views in establishing KTLN,” part of the suit documents states.
DWU accuses the AG and Public Service Head Dr Joseph Kinyua of contravening the constitution in merging KPA, KRC and KPC without public consultation by initiating the process without proper audit and impact assessment of the proposed mergers under one ministry.
The union also accuses them of usurping the role of Parliament before the enactment of the proposed Government Owned Entities Bill 2014 (GOE Bill) that seeks to repeal the State Corporations Act.
It further accuses them of placing KPA, KRC and KPC, which are independent institutions created by an Act of Parliament, under the Industrial and Commercial Development Corporation.
The union also accuses the respondents of establishing a parallel and rival entity instead of riding on existing administrative and governance structures provided under the various Acts of Parliament establishing the institutions and the Companies Act.
It further claims that they issued the Executive Order without any factual or legal foundation in a process intended to undermine the existence of independent institutions created by Acts of Parliament.
The union, which also argues that the mergers will lead to job losses, says that it has the right to equal protection and benefit of the law and full enjoyment of all rights and fundamental freedoms.