Kenya endorses citizens’ right of access to information

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Nairobi, August 2016 – Kenya now has an Access to Information Law, making it the 21st country in Africa to move in that direction. The law, which was signed by President Uhuru Kenyatta on August 31, effectively breathes life into Article 35 of the Constitution, which stipulates that:

(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 publicize any important information affecting the nation.

Taken together with Articles 34 and 36, which allow for freedom of the media and association, the information access law strengthens the public’s hand in terms of determining how it should be governed. While tabling the Bill in 2015, legislator Priscilla Nyokabi said: “The Bill is borne of the realization that access to information held by the Government and public institutions is crucial for the promotion of democracy and good governance.”

Open Government Partnership (http://www.opengovpartnership.org/about) welcomed the law as an “important commitment in Kenya’s 2nd National Action Plan”.

While welcoming the new law as heraldinga new dispensation of openness in the country and (underlining) the President’s commitment to promote transparency and accountability within government,” the director of Article 19 Eastern Africa Henry Maina pointed out what he described as its “few challenges in matters of scope”.

It seemed, he noted, to exempt cabinet deliberations and records from disclosure, while at the same time broadly defining national security. He called for narrower exemptions and a broader scope of disclosure by the Executive.

Last year, an organization called The Africa Freedom of Information Centre produced a report which evaluated access to information in 15 countries on the continent. One of its conclusions was that, “achieving complete observance of the right to information in Africa requires broadening the awareness of the right with both the citizenry and the authorities. Here’s a sampling of what The State of Right to Information in Africa Report 2015 said:

  • Nigeria: “The implementation of the FOI Act has been quite poor both at the level of usage of the law and in terms of the level of compliance by public institutions.”
  • Rwanda: “Citizens are yet to grasp the full extent of the ATI law . . . and information requests filed have been scarce.”
  • Uganda: Despite efforts to promote the right to information, “the practical realities show that Uganda still lacks the political will to fully ensure that her citizens enjoy RTI.”
  • Tanzania: A case of “bold commitments but disappoint reality”.
  • Zambia: “Politicians are synonymous with pronouncements of offering the Zambia people an ATI law only during election campaign periods but, without shame, they go to sleep or take up a defensive position immediately after assuming office.”
  • Algeria: No specific law on FOI but proposals have been for an Organic Law on Information
  • Ghana: “Practice lags behind the law, as Ghanaians are frequently denied access to information, and oftentimes public officials do not even reply to request for information.”
  • Liberia: “. . . has one of the best FOI laws in the world. Alas, what is fine on paper remains a far cry from what is happening in the implementation arena . . . Liberia has the reputation of signing onto international instruments but dithers in enforcement.
  • Ethiopia: A case of “suppression of expression and exclusion of powerless from development”.
  • Malawi: The constitution has a specific provision on access to information. “Despite this express protection of the RTI, there is no act of Parliament to give it effect.”
  • Mozambique: “So far the media has taken little advantage of the RTI legislation and there are few dissemination activities in the country.”
  • South Africa: “There are opportunities in relation to the advancement of access to information in South Africa, such as the Open Government Partnership and the broader advancement of proactive disclosure of information through open data.”