KENYA CONSIDERS FREEDOM OF INFORMATION LAW

KENYA CONSIDERS FREEDOM OF INFORMATION LAW
By Michael Murungi
September 2007

Kenya’s National Assembly is considering a Bill which proposes to create a citizen’s right to public information and to foster the proactive provision of information by public bodies. The Freedom of Information Bill, 2007, sponsored by Prof. Anyang’ Nyong’o, the Member of Parliament for Kisumu Rural, also proposes to impose obligations on private bodies to release information to a citizen where the information is necessary for the enforcement of any right.

Information, particularly information held by public bodies, is a key economic resource and the raw material for the transition from a commodity-based economy to a knowledge-based economy. Moreover, the free flow of information is key to democratic governance: it empowers citizens and enables them to participate in public affairs and it is an important tool for cultivating transparency and accountability in public bodies. These principles were captured in the Freedom of Information Policy which preceded the preparation of the Bill.

If the material provisions of the Bill survive parliamentary debate and are passed into law, it will be the first time in the history of the Kenyan legal system that a legally enforceable right to public information and a corresponding obligation by a public or private body to release information to a citizen will have been expressly provided in a statute.

CURRENT LEGISLATION ON PUBLIC INFORMATION
Presently, the regime of law governing the collection, storage and disclosure of public information is to be found in a host of statutes:

(a) The Disposal of Records Act of 1962;
(b) The Public Archives and Documentation Service Act of 1966;
(c) The Official Secrets Act of 1968;
(d) The Statistics Act of 2006; and
(e) Several other statutes establishing public offices having the express or ancillary duty to collect certain kinds of public information eg The Age of Majority Act; Births and Deaths Registration Act; Registered Land Act; Companies Act, etc.

The Disposal of Records Act
This Act makes provision for the disposal of public records in the custody of the High Court and the Registrar-General. In respect of the High Court, the Chief Justice may, subject to consultations with the Chief Archivist and in accordance with the Public Archives Act, make rules for the destruction of the records of the High Court or the subordinate courts which he considers to be of no further use or worthy of being permanently preserved. The Chief Justice is given the same powers with regard to the records in the custody of the Registrar-General.

However, the Act does not authorize the destruction of any document which is required to be preserved by any law.

The Chief Justice has made subsidiary legislation, the Records Disposal (Court Rules), governing the destruction of court records.

The Public Archives and Documentation Service Act
This Act creates the Kenya National Archives and Documentation Service (KNADS) and makes provisions for the preservation and public archives and public records. The Government Printer and all heads of government ministries, agencies and departments are obliged to furnish the Director of KNADS with two copies of any published or generally circulated document or report produced by their offices.

However, the Act does not expressly recognize any right of the citizen to access a public archive. It merely provides that public archives that have been in existence for not less than 30 years “may” be disclosed to the public though the Director is given the power to refuse the disclosure of such records. Moreover, public archives which have been existence for a shorter period may only be disclosed with the authority of the Director.

The Official Secrets Act
Since the enactment of the first edition in 1911, fewer laws have endured as much negative review and public scorn in Kenya as the Official Secrets Act. But much of the criticism may have been misplaced as it was inspired not so much by an understanding of the Act but by the interpretation of the actions of deceitful civil servants who may have wrongfully invoked it to conceal information which was otherwise not exempted from public disclosure. The purpose of the Act has remained noble: the preservation of state secrets and state security. All the Act does is to protect certain security installations from trespass; to restrict the improper use of the uniforms of the disciplined forces and the identity tools of government authorities and to allow government wire-taps on communication systems in certain circumstances.

Perhaps the only legitimate criticism that may be leveled against the Official Secrets Act is that it restricted access to public information long before an express right of access to public information was created. Nevertheless, the Freedom of Information Bill proposes to repeal this Act.

The Statistics Act, 2006
This Act establishes the Kenya National Bureau of Statistics for the collection, compilation, analysis, publication and dissemination of statistical information and the co-ordination of the National Statistical System.

THE FREEDOM OF INFORMATION BILL
The Freedom of Information Bill appears to have been drafted with the benefit of a comparative study of similar laws in well established democracies, including the USA, the UK, Australia, New Zealand, Ireland, Netherlands, France and Canada.

Citizen’s Right of Access to Public Information
In section 25 of the Bill, it is proposed to enact that every citizen has a legally enforceable right to obtain access to information held by or under the control of a public authority. Further, the citizen has the same right with respect to information held by or under the control of a private body where that information is necessary for the enforcement or protection of any right.

That right is not to be affected by the reasons that the citizen gives for seeking the information or the belief of the public authority as to what that reason might be.

Establishment of the Kenya Freedom of Information Commission
Section 5 of the Bill proposes to establish a corporate body to be known as the Kenya Freedom of Information Commission with the following functions:
(a) to investigate the violation of the Act either on its own motion or upon the complaint of an individual;
(b) to inspect public authorities with a view to evaluating the collection, processing and dissemination of information to the public;
(c) to inform and educate the public as to their rights under the Act;
(d) to recommend to all public authorities effective measures to promote access to information;
(e) to act as the chief agent of the Government in ensuring that all public authorities comply with its obligations under international treaties and conventions on access to information;
(f) to approve information dissemination procedures by all public authorities;
(f) to perform such other functions as the Commission may consider necessary for the promotion of access to information.

Proactive Disclosure of Information by Public Authorities
Section 27 proposes to create an obligation on public authorities to publish, not later than one year after the commencement of the Freedom of Information Act,:
(a) the particulars of the organization, its functions and duties;
(b) the powers and duties of its officers and employees;
(c) the procedure followed in the decision making process including channels of supervision and accountability;
(d) the norms set by it for the discharge of its functions;
(e) any guidance used by the authority in relation to its dealings with the public or with corporate bodies, including the rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions; and
(f) a guide sufficient to enable any person wishing to apply for information
under the Act to identify the classes, subject and location of information held by it;

Information exempt from disclosure
Information may be withheld by a public authority where the public authority is satisfied that the disclosure of the information is reasonably likely to:

(a) cause serious prejudice to the national security of Kenya;
(b) impede the due process of law or to endanger the safety or life of any person or the safety of a rare or endangered species;
(c) involve the unwarranted invasion of the privacy of an individual other than the applicant or the person on whose behalf an application has with proper authority been made;
(d) cause serious prejudice to the legitimate commercial or financial interests of that authority or third party from whom information was obtained;
(e) cause serious prejudice to the ability of the Government to manage the economy of Kenya;
(f) significantly undermine a public authority’s ability to give adequate and judicious consideration to a matter concerning which no final decision has been taken and which remains the subject of active consideration; or

Providing access to information
Upon the making of a request for information by a member of the public, the public servant who receives the request shall make a decision on the application as soon as possible and in any case, not later than 15 working days from the time of receiving it. However, information relating to life or liberty is to be furnished within 48 hours. The Commissioner of Information may nevertheless grant an extension of up to 15 working days where the information sought is unusually complex or voluminous. No fee is to be charged in relation to the submission of a request and only a reasonable fee may be charged for supplying the information. However, this costs is not to exceed the cost of making copies of and supplying the information.

A request for information may be granted in full or in part or it may be declined. Where the request is declined or only partially allowed, the public body incurs an obligation to give reasons to the person requesting.

Review and dispute-resolution mechanisms
Where a request for information has not been granted to the satisfaction of the person requesting or any affected third party may make file an appeal or a review of the decision. A citizen may file a complaint with the Kenya Freedom of Information Commission which is to be give quasi-judicial powers with respect to the hearing and determination of complaints; it may summon persons, take evidence and issue remedies including ordering the release of withheld information and the payment of compensation.

A person dissatisfied with an order of the Commission is to be given the right of appealing to the High Court.

CONCLUSION
A freedom of information law is long overdue in Kenya. Even though the country has missed out on many of the democratic gains that could have been realized by an early enactment of this law, the Bill is nevertheless a welcome development. Other African countries are in various stages of enacting similar laws, including Nigeria, Lesotho and Ghana. Uganda’s law came into force in 2006. In a number of countries, such as South Africa, Macedonia and Latvia, there are express constitutional provisions guaranteeing the citizen’s right to access public information but in a number of countries, the right is only vaguely expressed in the constitution.
See (http://en.wikipedia.org/wiki/Freedom_of_information_legislation) .

If the Bill is passed, Kenya will join an expanding family of nations in which that right is expressly protected by a statutory enactment.

*The author is a communications legal expert.