The State has dropped plans restricting ship owners from providing crewing agencies, pilotage, clearing and forwarding services.
The State is seeking to amend the Merchant Shipping Act, 2009, which was declared unconstitutional, null and void.
The High Court in Mombasa declared amendments to the Act unconstitutional, null and void. The amendments were made through the Statute Law (Miscellaneous Amendments) Act, 2019.
Section 14 (2) of the Merchant Shipping Act 2009 restricts the Kenyan waters only to Kenya-flagged ships with section 57(1) of the same law requiring vessels “of whatever length” operating within the territorial and inland waters be licensed by the Registrar of Kenyan Ships.
Kenya, which receives slightly over one million containers every year at its Mombasa port, does not have a local merchant shipping line. The country relies on foreign merchant vessels which make about 1,800 calls annually at the Mombasa port, bringing imports and ferrying exports to markets across the world.
Kenya, therefore, counts on the collection of registration fees, a formality that confers artificial citizenship to a foreign ship, as part of its earning from the industry.
Registration also enables a country to impose its code of conduct on the ocean-going vessel as licensing conditions compel them to observe all the laws and international conventions that Kenya has signed.
“The Bill proposes to amend the Merchant Shipping Act by deleting section 16 which restricts ship owners from providing the following services in the maritime industry: crewing agencies, pilotage, clearing and forwarding agencies, port facility operator, shipping agent and clearing and forwarding agencies,” the Bill states.
The Proposed law also allows ship owners to be terminal operators, container freight station, quay side service provider, general ship contractor, haulage, empty container depots, ship chandler or such other services.
This was following the declaration by the High Court in September 2020 and to allow for the revival of the Kenya National Shipping Line.
A three-judge bench consisting of the justices Eric Ogolla, Mugure Thande, and Alfred Mabeya, ruled that the amendments were made without proper public participation.
Parliament issued a six-day notice period for the public input, but the judges found that the time was not adequate and that the notice, made through the print media, lacked information touching on the amendments.
The judges ruled that the public could not engage meaningfully. The High Court also ruled that although different people appeared to have presented memoranda to the National Assembly’s Transport committee in support of the amendments, the documents appeared similar.
They concluded the memoranda must have originated from one source.
