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Opinion & Analysis

Editorial: Reinstate freedom of information in draft law

Because they did the unexpected, Kenyans have been showering the Parliamentary Select Committee that met in Naivasha with praises, oblivious of the grievous damage that the team dealt to the 20- year effort to infuse accountability in government and expand the boundaries of freedom.

Contrary to expectations that they would stall the constitution making project because of the deep divisions over subjects of interest to them such as the powers of the Executive and devolution, the Naivasha team shocked the nation by striking quick deals over these contentious issues.

Yet those who have taken time to read the through the draft with the Naivasha amendments will agree that it is a classic confirmation of the old adage that when the deal is too good, think twice.

It is now emerging that the quick agreement on the contentious issues only made time for the MPs to reverse nearly all the potential gains that people of Kenya had wanted in the new constitutional dispensation.

That list includes deletion of the clause that provided for the right to peaceful demonstration without the requirement of a permit, a whole range of basic freedoms granted in the Bill of Rights, determination of national holidays and the elimination of the provincial administration.

The most spurious and mischievous amendment to the draft that the Naivasha team made and which unravels their intention to maintain the status quo is however the unwarranted deletion of Section 40 of the Harmonised Draft that provided for access by citizens to information held by government.

First, this matter was not contentious and was therefore need not have been subject to the deliberations of the committee.

Second, it cannot be argued that entrenching this right in the constitution is out of tune with the practices in other democracies.

In fact in the US, Freedom of Information is deeply entrenched in the constitution as part of the First Amendments that is the sacred heart of the country’s basic law.

But even more important for ordinary Kenyans is the danger of missing out on the fruits of freedom of information that empirical studies have demonstrated are immense in a poor country such as ours.

Paul Collier, a professor of Economics at Oxford University and publisher of a 2007 book on economics of poverty, argues that the media is the most effective form of scrutiny on governments and with the potential of bearing the most economic fruits for the bottom billion.

The reality is that the media can only play that role with enhanced access to information held in the corridors of power.

This is because experience has shown that information is the silver bullet against corruption that robs government of billions of shillings it should use to improve the livelihoods of the poor – and is the spotlight that sheds light in the dark corridors of secrecy from where corruption schemes are engineered.

That politicians can claim to have settled for a progressive constitution while at the same time removing clauses that provide for transparency in government is double-speak that must be opposed at all costs.

Pretending as they did that Parliament will enact a law providing for access to information amounts to a “fatal conceit” condemned by Fredrick von Hayek, the Austrian classical economist and philosopher.

Because any law that brings in light in the arena of governance will certainly hurt the politicians the most, a freedom of information Bill has been before the house for the past six years without parliamentarians showing any appetite for its enactment.

It might help to remind the Kenyan public that the right to access information held by government is not political but economic.

It is the secrecy of government operations that has enable those who wield power to cut large potions of the national cake for themselves and their friends without fearing the consequences of exposure.

This is the reason that all must fight for reinstatement of Section 40 of the pre-Naivasha harmonised draft.

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