I have just finished reading, for the second time, the decision by the International Center for the Settlement of International Disputes in the case between Cortec Mining Company Limited and the Kenyan government. One of the issues that the case raises relates to use of public position to unfairly confer benefits on private individuals.
The genesis of the dispute was the decision to cancel all mining licences in Kenya. The licence that Cortec had to mine in Mrima Hills at the Kenyan coastal region was one of those affected by the order. Cortec went to court to challenge this decision arguing that their proprietary rights were being expropriated without due process and without compensation.
Both the High Court and the Court of Appeal rejected these arguments and upheld the decision of the government necessitating the case at the arbitration tribunal.
During the tribunal hearings, one of the key issues, was the legality of the licence issued by the government official. The government on the one hand argued that the official had no discretion to issue the licence since Mrima Hills was a reserved area, where no prospecting or mining operations could be authorized. On the other hand, Cortec argued that the case was shrouded with politics, since they even had to seek political support to have their licenses renewed.
While the tribunal acknowledge the existence of political pressure and influence on some of the processes, it held that its decision could only be based on the law. Two critical things that they referred to in their decision that is important moving forward. First, is the fact that political considerations and pressure cannot override legal provisions. There are numerous instances when politicians and superiors put pressure on junior…