Sorry, Adani deal is a NO!

Sorry, Adani deal is a NO!

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Introduction

In democratic societies, governments are expected to serve the public interest, which includes addressing the needs, concerns, and aspirations of their citizens and Kenya is no exception. When entering into contracts, whether for infrastructure projects, resource extraction, or public services, governments must ensure that these agreements benefit the public and do not infringe upon their rights or well-being.

The Adani deal, a significant infrastructure agreement with the potential to reshape parts of Kenya's economy, includes contentious provisions that pose serious threats to the country’s constitutional order. At the heart of the deal is a clause that demands compensation for losses and anticipated profits resulting from interruptions caused by court rulings, parliamentary decisions, or public protests. On the surface, this may seem like a business-friendly arrangement, but upon closer inspection, it collides head-on with Kenya’s fundamental legal principles—parliamentary sovereignty, judicial independence, and the constitutional right to picket.

At the heart of this legal analysis lies a simple but profound truth: the Constitution of Kenya is the supreme law of the land. Article 2 of the Constitution clearly states that any law, agreement, or action that is inconsistent with the Constitution is void to the extent of its inconsistency. This means that no contract—no matter how economically advantageous—can stand if it violates the basic constitutional principles of parliamentary sovereignty, judicial independence, and the right to picket.

The compensation clause in the Adani deal does exactly that. By seeking to indemnify the company against court actions, parliamentary decisions, and public protests, it fundamentally violates the Constitution. The supremacy of the Constitution demands that such clauses be struck down, and that the deal, in its current form, be rejected.

The contract significantly tampers with Parliamentary Sovereignty

The principle of parliamentary sovereignty allows Kenya’s National Assembly to make laws for the benefit of all citizens. Parliament is the body entrusted with legislating policies that reflect the nation’s will, ensuring economic, social, and political development. The Constitution grants Parliament this power with minimal interference, and any restrictions on its ability to legislate must be deeply scrutinized.

However, the compensation clause in the Adani deal essentially puts a straitjacket on Parliament. It stipulates that if Parliament passes legislation or makes decisions that adversely impact Adani’s profits, the company must be compensated for its losses. This clause severely limits Parliament’s ability to make laws that might affect Adani’s business interests, even if those laws are in the public interest, such as environmental protections, labor rights, or land reform.

In effect, this would make the legislative body hesitant to introduce laws that could be interpreted as economically harmful to Adani, thereby subjugating Parliament's legislative autonomy to corporate interests. Such a provision stands in direct opposition to the Constitution, which enshrines Parliament’s legislative supremacy under Article 94. Parliament should be free to act in the public interest without the threat of compensatory claims from private corporations. After all Parliament is meant for the people not corporate bodies like Adani. This clause undermines the sovereignty of Parliament and must be rejected to preserve the integrity of Kenya's legislative process.

Judicial Independence: Undermining the Courts

Judicial independence is a cornerstone of any functioning democracy, and in Kenya, it is fiercely protected by the Constitution. Article 160 guarantees that the Judiciary is free from interference, allowing it to interpret and apply the law without external pressures. This independence ensures that court decisions are based solely on the law and the facts of each case, without fear of repercussions from businesses or the government.

The Adani deal’s demand for compensation in the event of court actions that interrupt their operations strikes at the heart of this principle. It effectively penalizes the Judiciary for fulfilling its constitutional mandate. For example, if a Kenyan court were to issue a ruling that halts an Adani project due to violations of environmental laws or contractual disputes, the company would be entitled to claim compensation for any resulting losses. This would create a chilling effect, where judicial officers might be reluctant to issue rulings that could trigger such claims, even when justice demands it. Allowing a private entity to be compensated for lawful judicial actions would undermine the authority of the courts, making them beholden to corporate interests. Such a provision is not only a violation of judicial independence but also an affront to the Constitution, which grants the Judiciary the power to check and balance the other arms of government. The supremacy of the Constitution means that any agreement that threatens judicial independence is unconstitutional and must be rejected outright.

The Right to Picket: Article 37 under siege

The right to picket and peacefully protest is one of the most powerful tools of democracy. Enshrined in Article 37 of the Constitution, this right allows Kenyans to express their grievances, hold leaders and corporations accountable, and demand change. Public protests have played a vital role in shaping the country’s political landscape, driving forward essential reforms and safeguarding public interests. Yet, the Adani deal seeks to override this constitutional right. The compensation clause demands that Adani be reimbursed for any losses caused by protests or demonstrations. This provision directly targets the constitutionally protected right of Kenyans to protest against policies or projects that harm their communities or livelihoods.

If allowed, such a clause would have a chilling effect on public protests. Protestors would face the knowledge that any disruption to Adani’s business could result in a claim for damages, turning legitimate expressions of dissent into costly liabilities for the state or other stakeholders. This would curtail the public’s ability to hold corporations accountable and stifle democratic participation in governance. Given Kenya’s history of civil society activism and public engagement, allowing such a clause would erode the hard-fought freedoms that citizens enjoy under the Constitution. Any contract that undermines the right to protest is not just undemocratic; it is unconstitutional and cannot be allowed to stand.

Parting shot: Adani, A Deal That Must Be Rejected

The Adani deal, though economically significant, presents an unacceptable challenge to the constitutional order of Kenya. By infringing on the sovereignty of Parliament, the independence of the Judiciary, and the right to protest, the compensation clause places corporate interests above the Constitution. This cannot be allowed. Kenya’s commitment to the rule of law, democratic governance, and public participation is enshrined in its Constitution. Any contract or agreement that seeks to undermine these principles is fundamentally incompatible with the country’s legal framework and must be rejected. As Kenyans, we must protect the supremacy of our Constitution and ensure that it remains the guiding force for all laws, policies, and contracts within our borders.The Adani deal, in its current form, is not just a business agreement—it is a constitutional affront. For the sake of our democracy, it must be reconsidered and revised to ensure full compliance with the supreme law of the land.