Freedom of information in Kenya

By Priscilla Nyokabi,ICJ-Kenya.

The Kenyan section of the International Commission of Jurists (ICJ) and the Freedom of Information Network celebrates the dawn of an era in Kenya marked by the introduction of the Freedom of Information Bill, 2007 in parliament (on) 17 May 2007, by Hon. Gideon Moi on behalf of Hon. Prof. Anyang’ Nyong’o.

The painstaking efforts of the Freedom of Information Network of drafting and publicising the Freedom of Information Bill have finally come to fruition through the tabling of the bill. This has been an ongoing campaign since the year 2000 spearheaded by ICJ-Kenya in consultation with various stakeholders, members of the Freedom of Information Network, and supported by many Kenyans countrywide. The 9th parliament has brought us to the peak of the Right to Know Campaign by embarking on the legislative process.

We are happy to note that even the government is keenly committed to this cause, as evidenced by the publication of the recent Draft Kenya Freedom of Information (FOI) Bill 2007. Indeed all stakeholders are reading from the same script, the government, the media, the civil society, MPs and all Kenyans of good will. We therefore envisage a smooth passage of the bill long before elections.

The published bill has very progressive provisions. It promises to usher in an era of openness, transparency and accountability in Kenya. Enactment of the FOI Act will confirm Kenya as a leading democracy in Africa, and among the top five countries to have an FOI Law. Only South Africa, Angola and Uganda have access to information regimes.

We are now at the finishing line towards having an FOI Act in Kenya. The clock is ticking and we urge all members of the 9th parliament both in opposition and in government to rise to the occasion and put the interests of this great nation forward by enacting the bill in its entirety.

Why an FOI law?

There are many reasons for having freedom of information legislation: to make government more accountable, increase public participation, promote the involvement of all in public life, including those currently marginalised, like women; to make private companies more accountable, monitor and expose corruption, lead to better decision making, protect privacy, expose human rights violations, and promote workers’ rights; and to make the country more secure. Access to information is instrumental to parliament’s oversight role.

Access to information makes the government more sensitive and responsive to the needs and demands of the ordinary people. A freedom of information law increases public participation, because the public can regularly engage with government officials and parliamentary representatives.

Freedom of information entails the rights of citizens of a country to access official information held or in the custody of their government. It invokes an obligation on the government to facilitate easy access to information under its docket, and, significantly, to publish important information pro-actively and regularly for the general public.

Good governance, an essential component of any thriving democratic state, is premised on a system of openness, trust and government accountability. This can only be achieved if the public is involved in the process of governance. If the general public knows the functions, policies and decisions made, they can question the government on the basis of the information obtained, and, most importantly, the reasons for the government’s actions. It is thus necessary that the government develops a clear policy on the freedom of information in a bid to ensuring that subsequent legislation - freedom of information laws - are implemented effectively and based on accepted international principles and best practices.

The right to information underpins all other human rights; it is the cornerstone of all other rights. The right is encapsulated in the 1948 Universal Declaration of Human Rights (UDHR) under Article 19. It is similarly enshrined in the International Convention of Civil and Political Rights (ICCPR), to which Kenya is a party.

Though the Kenyan constitution does not expressly provide for the freedom of information, section 79 of the constitution makes provision for the freedom of expression which includes among other things: ‘freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of person)’.

The right to information is enshrined in the section 79 of the constitution, which provides for freedom of expression. The right is however derogated from through various pieces of legislation, chief among them is the Official Secrets Act. This position was sought to be corrected in the draft constitution, article 51 of which expressly provides for the right of access to information, and requires an enabling law be enacted within six months of the coming into force of the new constitution.

As can be reasonably inferred from the constitution, the right to receive ideas and information without interference affords the citizens of Kenya a right to access information, including government information. Similarly Kenya has ratified and adopted the UDHR and the ICCPR; and the government is under an obligation to promote and preserve the right to information. One end of achieving such means is by putting in place the necessary policies to promote the right and the enactment of a freedom of information law to guarantee the said right to the citizenry.

The implementation and operationalisation of both a policy and freedom of information law will be the essential building blocks towards creating an open, free and accountable culture in Kenya and the foundation of a successful democratic state.

International principles and best practices

For the proposed freedom of information policy 2007 to be effective in implementing a FOI regime, they must be premised on international principles and best practices, which have been developed over the years by countries that have adopted FOI laws, borne out of their experiences in respect to operationalising the enjoyment of the right to know. As we are getting into FOI jurisprudence after many other countries, let us learn from them and adopt best practices.

In borrowing international practice for the FOI regime, let us borrow from the most progressive jurisdictions in application of the FOI Law. Australia and United Kingdom are known to be conservative regimes. South Africa and India provide more progressive models. Let us at look at drawing lessons from closer home in South Africa.

There are the minimum standards that any proposed FOI law should adopt in order for a state to fulfil its obligations of promoting and preserving the right to information. These principles are set out below.

Maximum disclosure

This principle provides for a strong presumption in favour of disclosure of information. Simply put, it advocates for the disclosure of all government or public information. It covers the access of information in all public bodies and private bodies that carry out public functions or where their activities affect the public rights or civil liberties.

Under this principle disclosure and access to information is the norm; the exception being non-disclosure. In addition this principle imposes an obligation on the state to pro-actively and regularly publish information in its possession without any prompting from the public. It establishes minimum standards under which public records are to stored and maintained by public bodies. It provides for offences for the obstruction of access of information or the wilful destruction of records.

Minimum exemptions

Closely linked to the principle of maximum disclosure, this principle advocates for limited exceptions of information that should not be disclosed. It provides that exceptions should be precise and narrowly drafted to protect a legitimate interest from harm, often referred to as the ‘harm’ and ‘public’ test. Exceptions should be based on the content rather than on a particular class such as ‘national security’. In short, no blanket exemptions are allowed. A refusal to disclose information must be justified by a public body and should meet a strict three-part test, including:

* information must relate to a legitimate interest/aim listed in the law
* disclosure must threaten to cause substantial harm to that aim
* the harm to that interest must be greater than the public interest in having the information disclosed.

It should be noted that even though the information in question meets the above mentioned three-part test, it might still be disclosed if it is shown that the public interest in disclosing that information is greater than the harm that may befall the protected interest. This is what is referred to as the public override test.

Simple, easy and inexpensive access

Any freedom of information law should provide for a mechanism for simple and cheap access to information. The process of deciding upon requests for information should be defined at three main stages: within the relevant public body; appeals to an independent administrative body; and an appeal method to the courts. Where applicable, the provision should ensure full access to certain disadvantaged groups such as the disabled. The cost of obtaining information should not be dear as to prevent the realisation of the objectives of the law.

Promotion of open government

This principle mainly advocates the promotion of the right to information by the government, and creating a culture of openness within government circles. This entails the provision of public education, dissemination of information relating to FOI to the general public, informing the public about the scope of the information that is covered by the law, information available and the manner in which the public may exercise their rights.

In addition, this principle places an obligation on the government to provide training to their officers on the freedom of information, the scope of the right, procedures for allowing access of information to the public, maintenance and preservation of public documents, information that should be pro-actively disclosed and the scope of whistleblower protection.

Disclosure takes precedence

This international principle simply provides that existing laws, which are in contrast with the principle of maximum disclosure, should be amended or repealed. That other laws relating to the maintenance, publication or dissemination of public information should be construed in a manner consistent with the FOI law. Where inapplicable, such information should be dealt with subject to the principles espoused by the freedom of information legislation.

Whistleblower protection

An effective freedom of information law should make provision for the protection of whistleblowers. Whistle blowers as the name suggest refers to government employees or third parties privy to government functions who disclose information of wrong doing by government officials, information which is the subject of exemption. This people perform the function of early warning and complement investigators roles. Such people should be properly protected from reprisals from government officials or penalisation, as a result of their actions, so long as they act reasonably and in good faith.

Conclusion

The FOI Bill 2007, when enacted into law, promises to usher Kenya into an era of openness, transparency and accountability. Access to information is the key pillar of democracy. It will facilitate public participation in public affairs, as noted by President Mwai Kibaki in 2005:

‘...more importantly, the free flow of news and information is one of the hall marks of a functioning democracy. An informed society is able to better participate in design and execution of public policies. It is also more resourceful and creative in addressing social challenges. Such a society is therefore, better placed to increase productivity and prosperity...my Government is, together with media and other stakeholders, drafting a Freedom of Information Act, to bring the legal framework in line with current realities. These and other initiatives are meant to enhance the ability of the people of Kenya to exchange ideas, question the Government, contribute to national development and be part of a truly democratic state.’

The above is a reflection of the promises we are asking all our leaders to keep in bringing Kenya in line with the current realities. Kenya should join the other 70 countries in the world that have enacted freedom of information laws.

* Priscilla Nyokabi is programme officer for the Kenyan Section of the International Commission of Jurists www.icj-kenya.org

Source: Pambazuka News.

Photo: President Emilio Mwai Kibaki of Kenya.