ATI Bill Offered in Kenya; Next Step First Reading

12 August 2015

A bill on Access to Information has been submitted in the Kenyan National Assembly by Hon. Priscilla Nyokabi.

The bill has been published and the next step is first reading. (For text see entry 31 in a list on Kenya’s National Assembly Bill Tracker.)

Despite a constitutional provision (Article 35) guaranteeing a right to information, efforts to develop and pass an implementing law have been slow.

“We need this law,” Nyokabi wrote on her Facebook page. She continued: “Information is oxygen and sunshine. I am committed to following this law to passage and do thank the Energy and Communications Committee for allowing the Bill to proceed through a private member.”

Private Bodies Covered in Some Circumstances

The proposed bill would cover public bodies and any private entities that “receives public resources and benefits, utilizes public funds, engages in public functions, provides public services, has exclusive contracts to exploit natural resources.” In addition, private entities would be covered if they are “in possession of information which is of significant public interest due to its relation to the protection of human rights, the environment or public health and safety, or to exposure of corruption or illegal actions or where the release of the information may assist in exercising or protecting any right.”

The goals include requiring “public entities and private bodies to proactively disclose information that they hold and to provide information on request in line with the constitutional principles.” Other goals are to “promote routine and systematic information disclosure” and to “provide for the protection of persons who release information of public interest in good faith.” The bill sets out various specific proactive disclosure tasks including disclosures about government contracts and official salaries.

Among the bill’s proactive disclosure elements is a requirement that government “publish all relevant facts while formulating important policies or announcing the decisions which affect the public, and before initiating any project, or formulating any policy, scheme, programme or law, publish or communicate to the public in general or to the persons likely to be affected thereby in particular, the facts available to it or to which it has reasonable access which in its opinion should be known to them in the best interests of natural justice and promotion of democratic principles.”

The bill stipulates that “information shall be disseminated taking into consideration the need to reach persons with disabilities, the cost, local language, the most effective method of communication in that local area, and the information shall be easily accessible and available free or at cost taking into account the medium used.”

Exemptions List

The bill contains eight exemptions, allowing information to be withheld if disclosure would:

(a) undermine the national security of Kenya;

(b) impede the due process of law or endanger the safety of life of any person;

(c) involve the unwarranted invasion of the privacy of an individual, other than the applicant or the person on whose behalf an application has, with proper authority, been made;

(d) infringe on the commercial interests, including intellectual property rights, of that entity or third party from whom information was obtained;

(e) cause substantial harm to the ability of the Government to manage the economy of Kenya;

(f) significantly undermine a public entity’s ability to give adequate and judicious consideration to a matter concerning which no final decision has been taken and which remains the subject of active consideration;

(g)  damage a public entity’s position in any actual or contemplated legal proceedings; or

(h) infringe legal professional privilege.

Another section defines six national security considerations.

Mitigating Factors

The exemptions for commercial interests and protection of the government’s ability to manage the economy would not apply if a request for information relates to the results of any product or environmental tests, and the information concerned reveals a serious public safety or environmental risk.

Also, disclosure maybe required where the public interest in disclosure outweighs the harm to protected interests. The bill suggests five considerations to be used on evaluating the public interest.

21-Day Time Frame for Disclosure

Access to information, the bill says, “shall be provided expeditiously and inexpensively.”

Request are supposed be answered within 21 days, but where the information sought concerns the life or liberty of a person, the information shall be provided within forty-eight hours of receipt of the application or not later than fifteen working days where the application is complex or relates to a large volume of information.

Appeals may be made to the existing Commission on Administrative Justice, which would be able to conduct investigations including through the use of subpoenas. Its decisions would be binding. Unsatisfied persons may appeal to the High Court.

Financial penalties and prison terms of up to two years are possible for those who violate the law.

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