Kenyan Draft FOI Bill Subject to More Review

27 January 2012

The Kenyan Constitutional Implementation Commission has asked for further modifications of a draft freedom of information law, according to an expert who attended the meeting.

A few issues proved contentious and a technical committee was asked to seek further submissions from stakeholders and to make further recommendations.

Below are the main provisions on which the Jan. 23 meeting failed to reach a consensus:

–  Definition of national security

– Supremacy of this law over other laws relating to access to information

–  The requirements on public authorities for proactive disclosure – These were viewed by some as being too heavy on public authorities to comply within 12 months and on a consistent basis thereafter.

–  “Publishing” requirements of the draft law in consideration of public authorities that do not have websites. Discussions were held as to what extent of “publish” or dissemination would satisfy the “publish” component of this law.

– Measure of reliance on constitutional provisions versus freedom of information principles.

–  The type of oversight mechanism to be established. Discussions were had on whether it should be a Commission, department within the Kenya National Human Rights Commission, Ombudsman or other body.

– Information that is privileged in professional practice. Examples given were lawyer/client privilege and doctor/client privilege.

The committee is seeking to implement the Kenya Constitution, which includes a right to information clause. (See previous FreedomInfo.org report.)

The draft FOIA bill would implement Article 35 of the Constitution adopted in 2010. (See previous FreedomInfo.org report.)

CLD Comments on Draft Law

In a recent analysis, the Centre for Law and Democracy, based in Canada, praised the law and suggested improvements.

The draft was complimented for having a wide scope, a narrow regime of exceptions and an independent and powerful oversight body. “A number of CLD’s recommendations are fairly technical in nature, and should be relatively uncontroversial to implement.” The group highlighted these recommendations:

  • The rules on access to information held by private bodies should be better integrated into the law.
  • The right of access should apply to everyone, not just citizens.
  • The scope of the proactive publication obligations should be extended.
  • Some of the exceptions should be further limited.
  • It should be clear that public authorities bear the burden of proof in appeals against their decisions.
  • The rules on punishment for obstruction of access should be extended.
  • A full system for improving record management standards should be put in place.

The full commentary is available at: http://www.law-democracy.org/?p=1600

The comments were prepared for the Africa Centre for Open Governance, a Kenyan organization focusing on governance issues.

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