Kenya: Clear Need to Respect the Right of Access to Information

23 October 2014

By Riva Jalipa

The author is Legal Officer, ARTICLE 19–Eastern Africa. This is a chapter in a recently issued State of Right to Information in Africa Report 2014 and is reprinted with permission. (See previous FreedomInfo.org report.)

The violence that followed the 2007 general elections triggered wide–ranging debates and changes that form the basis of Kenya’s reform agenda today. Following decades of one party rule, Kenya’s democracy is consolidating under the new constitution and the freedoms it guarantees. All arms of government have been reorganised and service delivery devolved to local governments, which has increased the need for access to information in order for ordinary Kenyans to engage in this new arrangement.

Kenya has ratified four of the six African treaties on recognising the right to information[1], namely: The African Charter on Human and Peoples’ Rights, African Union Convention on Preventing and Combating Corruption, African Charter on the Values and Principles of Public Service and Administration and the African Union Youth Charter. It is worth noting that the new Government has put the youth agenda at the centre and initiated a number of programmes to realise the goals of the African Youth Charter.

Despite a history of tense and violent elections the Government is yet to ratify and implement the African Charter on Democracy, Elections and Governance, which lays out important provisions on electoral transparency and good elections management. Kenya is also yet to ratify and domesticate the African Statistics Charter despite Government’s numerous calls for regional trade, planning and integration.

Despite Kenya’s strong advocacy for African solutions to African problems the Government has been selectively respecting key African mechanisms. While it is commendable that Kenya ratified the African Charter on Human and Peoples’ Rights (ACHPR), it is a worrying that the Government of Kenya has consistently violated article 62 of the Charter by not reporting to the ACHPR as required. It is now overdue by four reports[2].

The Government of Kenya joined the Open Government Partnership and elaborated an action plan to advance transparency and accountability. In particular Government prioritised citizen feedback, open data, open budgets, elaboration and dissemination of citizen budgets and participatory budgeting[3]. Consultations between Government and civil society on the second action plan are underway.

Whereas the previous constitution only alluded to the right to information, Article 35 of the Constitution of Kenya, 2010 significantly advanced RTI in the Kenya legal framework by explicitly stating that:

  1. Every citizen has the right of access to—
    1. Information held by the State; and
    2. 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.

The entrenchment of RTI in the Constitution means that unless justified under the grounds for limiting freedoms[4], all legislation that restricts access to official information is unconstitutional. This constitutional

guarantee is especially important for the review of laws that continue to remain incompatible with Article 35[5]. It has been acknowledged that an enabling law would be important to facilitate full operationalization of Article 35 and a Freedom of Information Bill was developed in 2007 even before the promulgation of the Constitution, but has yet to be introduced to Parliament.

A history of legal and institutionalised secrecy of government operations[6] has created an environment in which the right to information (RTI) has historically been devalued, allowing corruption and other state excesses to thrive. The Anglo Leasing scandal of the early 2000s demonstrated the importance of RTI in preventing corruption as it involved diminished oversight for the procurement of police equipment because it had been classified as for “security” purposes. National security purposes have also been used to justify other state excesses, such as to curtail civil liberties and media freedoms as witnessed in the police summoning of two journalists over their coverage of the Westgate terror attack in September, 2013[7].

Despite this history there have been progressive measures in the promotion of RTI in Kenya. Beyond the Constitution, many laws or bills which are either sector–specific or relating to public service delivery in general acknowledge the role of RTI as a facilitative right for the realisation of economic, socio– cultural and political rights and for improving good governance. These include the Health Bill, Water Bill, Public Procurement and Asset Disposal Bill and Public Service (Values and Principles) Bill, all of 2014, that include provisions to promote transparency and accountability premised on the principle of RTI.

At the decentralised level, the County Management Act provides for public communication and access to information in the management of county affairs. Section 87 of the Act recognises that timely access to information, data, documents and other information relevant or related to policy formulation and implementation is important for promoting citizen participation in the running of county governments.

Actors in Kenya’s development and democracy agendas have acknowledged the necessity of RTI in advancing these processes. Initiatives aimed at enhancing open government have used RTI principles to promote transparency and accountability in government. These include the Kenya Open Data Initiative (KODI) and the Open Governance Partnership (OGP), which make key government data freely available to the public through a single online portal and comprise a country action plan to promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance.

The judiciary has recognised the import of RTI but has also not been expansive with its interpretations of RTI. In Peter M. Kariuki vs. AG[8] the court acknowledged the importance of RTI in determining appropriate damages for the petitioner. However, in Famy Care Limited vs. Public Procurement Administrative Review Board & Another, the court ruled that Article 35 only applies to Kenyan citizens and not to foreigners and further that the right of access to information can only be enforced by natural citizens and not legal persons. In Kenya Society for the Mentally Handicapped (KSMH) vs. the AG, the court held that “coercive orders of the court should only be used to enforce Article 35 where a request has been made to the state or its agency and such request denied”. These interpretations are contrary to the internationally established principle of maximum disclosure, which establishes the obligation of public bodies to disclose information and the corresponding right of every member of the public to receive this information. This principle further stipulates that everyone present in the territory of a country should benefit from this right.

In conclusion, the protection and promotion of RTI in Kenya has taken varying approaches driven by different impetuses and responding to changing circumstances including legislative developments, judicial interpretations and the incorporation of RTI in open government mechanisms. Advocacy initiatives should continue to utilise this diversity of opportunities to advance RTI. Other than passing the Freedom of Information Bill, RTI advocates could also seek to address more operational challenges such as improving data and record management in government and could involve other stakeholders such as the Commission on Administrative Justice (Ombudsman) in its oversight role to address maladministration. The media and the public at large should also exercise their rights to know and by so doing, create a demand to which government must answer.

Recommendations

  1. The effectiveness of African mechanisms is dependent on the commitment of Governments to ratify, domesticate and effectively implement regional treaties. Kenya should urgently ratify and domesticate pending African Union treaties including the African Charter on Democracy, Elections and Governance as well as the African Statistics Charter.
  2. It is of urgent necessity that the Kenya national and county governments operationalize article 35 of the Constitution through the enactment and effective implementation of freedom of information laws.
  3. As a champion of African solutions to African problems and active promoter of African integration, President Uhuru Kenyatta should take personal interest in ensuring that Kenya complies with reporting requirements to ACHPR in line with article 62 of the Charter.

Efforts of government to promote citizen engagement through initiatives like the open data portal and open government partnership are commendable and should be strengthened.

 


[1] http://www.au.int/en/treaties

[2] http://www.achpr.org/states/

[3] http://www.opengovpartnership.org/country/kenya

[4] See Article 24 of the Constitution of Kenya.

[5] Sections 17 and 18 of the National Assembly (Privileges and Immunities) Act allow for the withholding of information.

[6] The Official Secrets Act and Section 5 of the Service Commission’s Act require all public servants and all members of the Public Service Commission to swear an oath of secrecy respectively. Section 3(7) of the Act provides a complete cloak of secrecy over all official documents and severely punishes disclosure. The National Assembly (Privileges and Immunities) Act restricts access to information. The Service Commissions Act prohibits and criminalizes disclosure of any information unless with the written consent of the president.

[7] http://www.standardmedia.co.ke/mobile/ktn/watch/2000071199/gagging-the-media-over-westgate-coverage accessed on August 24, 2014.

[8] Petition 403 of 2006.

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