Kenyan Court Limits Access Right to Citizens

12 March 2012

The High Court in Kenya court has ruled that the right to information as provided for under section 35 of the Constitution is reserved only for Kenyan “citizens,” not for corporations or other entities.

The court March 2 denied a request by an Indian company for documents from two Kenyan government agencies concerning a contract award.

But the decision will have wider implications for using the right contained in the new Constitution. Work to develop a law to implement the 2010 Constitution is under way. (See previous coverage.)

Family Care Limited, the Indian firm, sought information concerning the handling of the award of a contract to supply various family planning commodities, funded by the Kenya Medical Supplies Agencies.

 The court determined: “The right of access to information protected under Article 35(1) has an implicit limitation that is, the right is only available to a Kenyan citizen. Unlike other rights which are available to ‘every person’ or ‘a person’ or ‘all persons’ this right is limited by reference to the scope of persons who can enjoy it. It follows that there must be a distinction between the term ‘person’ and ‘citizen’ as applied in Article 35.”

Article 35 of the Constitution provides:  “35. (1) Every citizen has the right of access to— (a) information held by the State; and (b) information held by another person and required for the exercise or protection of any right or fundamental freedom. (2) Every person has the right to the correction or deletion of untrue or misleading information that affects the person. (3) The State shall publish and publicise any important information affecting the nation.”

“Persons” may be companies, the court said, but “citizens” refers to natural persons.

“The clear intent manifested is that the right of access to information under Article 35(1) is limited by reference to citizen and is not intended to be exercised by juridical persons. This intention is even clearer when one considers that the right of access to information under Article 35(1) is in respect of citizens and while Article 35(2) entitles every person to correction or deletion of untrue and misleading information.”

The decision continues: “The only other right which is limited by reference to citizen is to be found at Article 38. Article 38 protects political rights of citizens.” The court also noted, “It is clear that Article 38 also negatives any intention by the people of Kenya to give juridical persons political rights. A corporation is not a real thing, it is a legal fiction, an abstraction and a vehicle through which natural persons can engage as a collective to realise certain objectives set out in the founding instrument.”

The court also rejected the argument that the company’s attorney, a Kenyan citizen, could exercise the right on his client’s behalf. “An advocate remains an agent for his client for purposes of prosecuting the case. He is not to substitute himself for his client or give his client certain benefits due to him as an advocate qua advocate or as a citizen by actively and deliberately circumventing constitutional or other legal provisions by using his privileged position in the course of proceedings.”

The complaint unsuccessfully argued that because the matter involved an international tender inviting non-citizens to participate, they should be entitled to constitutional protections and that if the information is relevant to adjudication of a dispute then the information must be provided.

The court also rejected a contention that the request should be allowed because it was brought in the public interest. “There is nothing in that Article that allows the limitation of citizenship to be overwritten in the public interest and I am not prepared to imply public interest where the provisions are so clear,” Judge D.S. Majanja wrote.

The requester sought the minutes and evaluation reports associated with the tender.

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