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Opinion & Analysis

New laws will allow access to information held by State

President Mwai Kibaki (2nd from right) and Prime Minister Raila Odinga (2nd from left) shake hands after their official announcement to the public of provisional results of Kenya's constitutional referendum in Nairobi August 5, 2010. Looking on are Vice President Kalonzo Musyoka (right) and deputy Prime Minister Musalia Mudavadi (left). Photo/AFP
President Mwai Kibaki (2nd from right) and Prime Minister Raila Odinga (2nd from left) shake hands after their official announcement to the public of provisional results of Kenya's constitutional referendum in Nairobi August 5, 2010. Looking on are Vice President Kalonzo Musyoka (right) and deputy Prime Minister Musalia Mudavadi (left). Photo/AFP 

The operations of the Kenyan government in the past 47 years can be summarised as secretive and opaque.

However, this will soon be a thing of the past.

However, the promulgation of the New Constitution on Friday will immediately allow Kenyans to demand disclosure of any information held by the State as provided for in Article 35.

It states that every citizen has the right of access to information held by the State; and information held by another person and is required for the exercise or protection of any right or fundamental freedom.

The idea that this provision of the New Constitution comes into effect immediately makes in some way superfluous the pending Freedom of Information Bill.

This is because the right to access information as formulated in the New Constitution is a blanket right, it needs no legislation on how it is applied and there is no qualification on the type of information that can be accessed.

In fact, the promulgation of the New Constitution immediately renders most sections of the Official Secrets Act redundant and the often quoted secrecy oath nugatory.

This is because the Article 35 (3) states that the State shall publish and publicise any important information affecting the nation.

That Article 35 found its place in the New Constitution after over 10 years of civil society organisations trying to advocate for the passage of an access to information law is a big win for democracy, good governance and rule of law.

To Wanjiku who has seen the quality of her life deteriorate because of bad governance and lack of accountability, the access to information provision could make a lot of difference.

Similarly, a legislator sitting in one of the parliamentary oversight committees, say the Parliamentary Accounts Committee, could request for comprehensive information on the expenses incurred by the State to resettle Internally Displaced Persons in the last two years.

To investigative journalists, the provision on access to information allows you to do your research and have an exclusive without having to look at your shoulders for fear of criminal charges like publication of false information or obtaining information illegally.

Thus Article 35 in the New Constitution is a win for all Kenyans regardless of status, profession, race, class and even level of education.

It obliges all public bodies, which is any body, established by or under the Constitution; established by statute; which forms part of any level or branch of government; owned, controlled or substantially financed by funds provided by government or the state; or carrying out a statutory or public function.

The writer is the director of ARTICLE 19 Eastern Africa.

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