Access to Information is the right of every citizen of Kenya under Section 35 of the Constitution. The Access to Information Act provides more rules for this to facilitate the access. And there are additional rules in special laws about government entities.
The provisions in the constitution should guarantee that every citizen has the right of access to information held by the State; and information held by another person required for the exercise or protection of any right or fundamental freedom. In addition, every person has the right to the correction or deletion of untrue or misleading information that affects them. Further, Sec. 35 Subsec. 3 of the Constitution provides a duty to the State to publish and publicize any important information affecting the nation.
Some Rules in the Access to Information Act
Finally, in August 2016, Kenya enacted the Access to Information Act. It lays down the conditions to which the government organs and agencies are obliged to give the information out. The law obliges public bodies to
- proactively publish in the public interest information in its possession;
- detail the manner in which an application for information is to be made and the manner in which the application is to be processed;
- it sets out the parameters for non-disclosure of information and confers on the Commission on Administrative Justice oversight and enforcement functions on access to information issues.
Publishing and Publicising
Sec. 2 of the Public Finance Management Act defines the difference between publishing and publicising. In short: Publicising means informing the public that an information or document exists. Publishing means making the document accessible to the public.
The Obligation to publish
What does it mean exactly if a public entity is obliged to publish a document? The Access to Information Act does not give a definition. But there is a definition in the Public Finance Management Act, Sec. 2. It states, the minimum requirement for publishing a document is to make it available for reading in a public library or office. And the definition sounds as if a government entity could choose among several options on how to publish (like printing it in the Gazette) – and therefore basically “publish” a document in an office somewhere in Nairobi – practically unreachable for a journalist working in a county. But is this true? It is of paramount interest for journalists that as many public documents as possible are available online.
The Obligation to publish online
With Sec 5 of the Access to Information Act it is safe to say that all relevant government material must be online. Because Section 5 provides that public entities must
publish all relevant facts while formulating important policies or announcing the decisions which affect the public
– and of course this includes, among many other documents, all documents in the budget timeline – To give just one example.
Sec 5, Subsec. 3, Paragraph (b) of the Act says the material shall be made available
on the internet, provided that the materials are held by the authority in electronic form.
Nowadays all important documents are written on computers – so they must be uploaded to web pages that everybody can find and access.
The public entities were given a grace period of 12 months after the commencement of the law in October 2016 to put these rules in effect. Which means that latest by September 2017 a paradise for retrieving important information has arrived in Kenya.
More specific cases
In several laws you find provisions for specific government entities like the Auditor General and the Controller of Budget that are more useful and more specific than the ones in the Access to Information Act (see here).
What to do?
What if an officer does not give out information you lawfully request? Henry Maina of the NGO Article 19 recommends three steps (source: TI Kenya: Adili 155, p.6, external link):
- To seek an administrative review and complain to the boss.
- Make a substantive complaint to the Commission on Administrative Justice.
- You are entitled to apply to the High Court seeking a redress that your right to information has been violated. The proceedings at the High Court will cost initially 10,000 Kenyan Shillings.
- But knowing all this you or your media house may first write a polite letter to the boss of the public officer mentioning the possibility. This would show that you know your rights. Kindly ask the responsible person to obey by the rules, and he or she may give you what you need.
- If somebody cites the Official Secrets Act, 1968 as a reason to not give information ask for the specific paragraph and check here (ext. Link) whether he may be right.
By the way, ratified instruments (international treaties and the like) also form part of the law of Kenya as per Article 2 (4) and (5) of the Constitution. This means the access to information provision in Article 9 of the African Charter on Human and People’s Rights (ext. link) are valid in Kenya. It states that “every individual shall have the right to receive information.” And “every individual shall have the right to express and disseminate his opinions within the law.” Under the same charter a model law on access to information was developed. It provides guidelines and principles (ext. link to article19) to develop national legislation on access to information.
