By Ruth Nzioka*
“You cannot protect the environment unless you empower people, you inform them, and you help them understand that these resources are their own, that they must protect them.”
Wangari Maathai(2004 Nobel Peace Prize Laureate)
The right to access public information refers to the right any person has to look for, request, and receive information held by the government.
The constitution is the foundation of all the rights in Kenya.Access to information is provided under Article 35 and states as follows:
(1) Every citizen has the right of access to —
(a) Information held by the State; and
(b) 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 implication of Article 35(1) is that a citizen does not have to give reasons for seeking information from the State. In case where he seeks information from a private entity or another person and the request is denied and files suit in court to compel the person to provide him with the information he has the onus of showing that the information sought is required for the exercise or protection of a particular right or fundamental freedom.
It should be noted this right only applies to citizens as interpreted by the Kenyan courts. This was seen in the case of Famy Care Limited vs. Public Procurement Administrative Review Board & Another  e KLR and only natural persons as seen in the case of Nairobi Law Monthly Company Limited V Kenya Electricity Generating Company & 2 Others  e KLR, where court held such right can only be enjoyed by a natural person.
Article 24 recognizes that any right or fundamental freedom in the Bill of rights may be limited but the limitation must be “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.” The limitation must be through legislation and shall not limit the right or fundamental freedom so far as to derogate from its core or essential content. The burden of proof lies on the person seeking to justify the limitation.
The State is obliged by Article 35(3) of the Constitution to publish and publicize any important information affecting the nation. The Constitution does not provide what important information is. This calls for legislation or policies and guidelines to provide for what important information is. Publication and making information public by the State will be one of the ways that will promote and give effect to the right of access to information. Citizens will generally seek from the State information that the State has not published or publicized. The net effect of these provision therefore requires the commissions and independent offices to publish information on their operations where citizens can access information from these State bodies without having to request for the information, and at a minimal or no cost. This promotes the protection and realization of freedom of information and access to information in Kenya.
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. The Access to Information Bill, 2013 is yet to be passed by parliament.
Article 35 is also given effect by other Constitutional provisions such as provisions requiring constitutional offices and independent offices to publish annual reports to the Kenyan people on their operations. On environmental information, the National Land Commission, for example, will publish environmental or environmental related information thereby giving effect to the Kenyan citizen’s right of access to environmental information.
Importance of an access to information law.
A history of legal and institutionalised secrecy of government operations has created an environment in which the right to information has historically been devalued, allowing corruption and other state excesses to thrive. The Anglo Leasing scandal of the early 2000s demonstrated the importance of right to information 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.
Access to information held by the state can be seen as a fundamental right of the individual and a crucial component of democracy. It allows the public to be aware of governmental decisions which can impact the environment and individual lives. Access to information also allows the public to participate in criticizing and thereby improving governmental decision-making, which ultimately can help to prevent harmful activities which can cause significant damage to the health of people and the environment.
The absence of such legislation can lead to the violation of citizens’ fundamental rights. In the absence of transparency, it is impossible for countries to operate as democracies. In a democracy it is essential that people can access a wide range of information in order to participate in a meaningful way in matters that affect them. It entrenches the principle that public “servants” act on behalf of the public when carrying out their functions and must remain accountable for their actions.
This law is also essential to combat corruption on the continent and has a significant impact on how citizens live their daily lives, and contributes significantly to access education, employment and health, as well as access to basic amenities and services, such as water, housing and electricity through ensuring citizens can hold government to account.
Progressive measures toward realisation of an access to information law 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 right to information 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 right to information.
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 right to information in advancing these processes. Initiatives aimed at enhancing open government have used right to information 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. Efforts of government to promote citizen engagement through initiatives like the open data portal and open government partnership are commendable and should be strengthened. On the downside though, the open data portal is not regularly updated mostly due to reluctance and stubbornness of public government agencies to disclose and make this information available
The judiciary has recognised the import of right to information but has also not been expansive with its interpretations of Article 35. In Peter M. Kariuki vs. AG the court acknowledged the importance of the right in determining appropriate damages for the petitioner. 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 effectiveness of Kenya’s right to information mechanisms is dependent on the commitment of the government to effectively implement freedom of information laws and the protection and promotion of these rights. This ongoing process has taken varying approaches driven by different impetuses and responding to changing circumstances including legislative developments, judicial interpretations and the incorporation of right to information in open government mechanisms. Advocacy initiatives should continue to utilise the diverse opportunities to the advance right to information. The media and the public at large should also exercise their rights to know and by so doing, create a demand to access of information.
*Ruth Nzioka is a Legal Researcher at the Institute for Law and Environmental Governance (ILEG). The views expressed here are purely her own and do not necessarily reflect ILEG’s position.