Kenyan Draft Law Faulted in Analyses by Two Groups

25 September 2014

A draft freedom of information law for Kenya (text) has been critically reviewed critiqued by two international organizations.

“Although the draft is relatively robust,” according to one analysis, “it is significantly weaker than the version which was proposed in 2012. The Attorney General submitted the draft bill, and the legislation remains under consideration in the National Assembly. (See previous FreedomInfo.org.)

“The biggest change is the decision to scrap the dedicated oversight body, the Freedom of Information and Data Protection Commission, and instead delegate oversight responsibilities to the Commission on Administrative Justice,” wrote the Canadian Centre for Law and Democracy

The CLD analysis is based on the RTI Rating (www.RTI-Rating.org), according to which the draft law scores 105 points out of a possible 150, placing it in a tie for 20th position globally from among the 98 laws from countries around the world which have been rated. By contrast, the 2012 draft scored 114 points, which would have put Kenya in 11th place globally.

“Another troubling change is the fact that the 2014 draft does not contain a section stating that its provisions prevail over those in other legislation to the extent of any conflict.,” observed CLD,” This would leave in place the pre-existing, overbroad secrecy regime, including the Official Secrets Act.

 Commonwealth Group Also Weighs In

The Commonwealth Human Rights Initiative has provided a 42-point analysis of the draft.

Among other recommendations, CHRI said:

  • The definition of “information” should be expanded to compel public entities to collect information that they are duty bound to collect but may not be doing so for variety of reasons including neglect.
  • The definition of “personal information” should be expanded to include DNA data about an individual and photographs which the individual has not consented to be made public.
  • Artificial juridical entities of Kenyan origin and non-citizens should be able to use the law.
  • It should be clear that a requestor must not be compelled to provide any reason for seeking information.
  • Clause 5(1) must include a duty to disclose budgets and expenditure in a detailed but easy to understand manner.
  • The clause on contracts should be improved.
  • Clause 6(6) requires exempt information to be held in such manner for 30 years. This is too long a period. it may be reduced to 10-15 years at least.
  • There must be protection for action taken in good faith when exempt information is disclosed. However permitting blanket amnesty if the exempt information
  • Various response times in the bill should be shortened.
  • The fees section could be misused.
  • “Clause 23(2) may be amended to clothe the Commission with the powers to compel a public or private entity to perform its proactive disclosure functions.”
  • “The Commission must also have the power to impose monetary penalties on errant information access officers without having to drag them to Court.”
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