Even before the Access to Information Act, this has been mandatory for Institutions
Years before the Access to Information Act, there already were laws in place that required state entities to publish and publicize routinely what they do and what the citizen should know about.
Some of them have not been followed for all those years. Check where access to information provicions are being followed and where not – and report about it!
The Public Audit Act and the Controller of Budget Act, for example, contain obligations for the Auditor General and the Controller of Budget to publish their reports within a short period of time. We have already reported that this is not being followed.
And the County Governments Act provides for rules of access to information in the Counties that partly double up with the Access to Information Act – and ran unnoticed since devolution came into place in 2012 / 2013.
Table of Content
Rules for the Controller of Budget
Rules for the independent commissions
County Documents
Procurement Documents
Declarations of Income, Wealth and Assets
Auditor General Reports must be online
Rules for the IEBC
The Controller of Budget (COB)
The ten Constitutional Commissions
The Constitution mandates the ten constitutional commissions, the Controller of Budget and the Auditor General to publish and to publicize their reports under Article 254 (3) of the Kenyan Constitution.
Access to County Documents
Every Kenyan citizen shall on request have access to information held by any county government or any unit or department thereof or any other State organ (County Government Act, 2012, Section 96).
All county governments and their agencies are required to designate an office for purposes of ensuring access to information. Further, the law requires county governments to develop county legislation on access to information subject to national legislation.
So far in the country, a small number of Counties have started to develop Bills on access to information such as in Bomet County and Kisumu County (ext. links). Has your county enacted such a legislation, years after devolution?
Unfortunately usually only a part of relevant county documents is online. But in the second decade of the third millenium it should be a routine practice that all important documents can be downloaded from the internet immediately after becoming public. But this is not the case. The Access to Information Act Sec. 5 should be a remedy for this. We have explained that provision on this page.
Access to Procurement Documents
Employees of Procurement Entities have to answer “proper requests for information” promptly. This is stated in their Code of Conduct in Section E22 (ext. link)
Wealth and Income Declarations by Public Officers
Every person with a legitimate interest and good cause has upon application a right to see the declaration of income, assets and liabilities by a public officer. Note, the Commission may ask the public officer what he says about it. So your enquiry is not anonymous. You can only publish the content of the declaration with the consent of the responsible commission. Public Officers Ethics Act Sec. 30 The result can trigger an information to the EACC for an investigation
Auditor General Reports must be online!
Sec. 39 of the Public Audit Act requires the Parliament and the County assemblies to publicise a submitted Auditor General’s (OAG) Report within seven days
on their official website and other public spaces. (Subsec. 2)
Fourteen days later the OAG himself has to publicise the report also
“on their official website and other public spaces.” (Subsec. 3).
But, as we are updating this toolbox page in May 2019, the law is not being followed. One example: The audit reports on the CDFs (Constituency Development Funds) for the financial year 2016/2017 were not to be found on the Auditor General Website, even though they were tabled in the National Assembly in July / August 2018!
Special reports of the Auditor General on State organs’ accounts also have to be made available to the public by the parliament or the relevant County assembly within 7 days, a notice has to be published at that time. The office of the Auditor-General shall publicize that report on its official website and any other public notice within 14 days after submitting it. (see Sec. 49 of the Public Audit Act)
IEBC
Section 27 of the IEBC Act provides the right of access to information held by the Commission. The Act requires the commission to publish and publicize all important information affecting the nation within its mandate. The Commission is required under section 24 to prepare an annual report to be presented to the President and Parliament.
Section 27 (2) sets out the steps one has to follow to access information held by the Commission;
a) Send the request for information to the Secretary to the Commission or to an officer designated by the Commission. The media department of the commission would be a first point of call.
b) Where appropriate, one has to pay the set fees to the commission before the information can be released. The fees are to be prescribed by the Commission and are meant to cover the administrative expenses of preparing the information sought.
Section 27(3) allows the commission to withhold information in certain circumstances. These include; where the request for information is unreasonable in the circumstances; where the information sought is at a deliberative stage; the applicant has failed to pay the requisite fees; or the applicant has failed to comply with reasonable confidentiality requirements imposed by the Commission.
