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Opinion & Analysis

Why access to information law is vital

Last week we focused on prudent management of the extractive industry. A key component of prudence is efforts geared towards enhancing transparency, with joining the Extractive Industry Transparency Initiative, an important step. Transparency efforts are not possible without availability of information.

It is for that reason that the country needs to improve the framework for availability of information.

When oil was discovered in Turkana, then Minister for Energy Kiraitu Murungi promised the country that the contracts with companies relating to the extractive industry would be availed to the public, including through dedicated website. While this has not happened it underscores the importance of availing information on all key aspects of the Sector.

At a training for media editors in Naivasha a few weeks ago, several issues relating to access to information were raised. One was a question which demonstrated that where there is no information available, the environment promotes rumours and unnecessary speculation.

Secondly, was the issue that without availing information to the Media on the nitty gritty and the facts and figures, it is difficult for the media to play their roles effectively as relates to extractives.

The campaign for a law on access to information has gone on in this country for a very long time. The start of the process was in response to the restrictions that came with the country’s Official Act whose mantra was to orient public officers to protecting state secrecy and not openness.

This led to the Kiswahili expression that Government is sirikali and not serikali. This was a key rationale for the reform of the legal framework governing information provision and availability in Kenya.

Calls for a freedom of information law were, however, not fully successful. Several draft legislations were prepared by both Civil Society and the Ministry of Information but none went through the full legislative process.

The current Constitution has, however changed the landscape for access to information. It is now clear that accessing information is not just an issue for advocacy groups only or discretion but a constitutional imperative. Article 35 of the Constitution provides that access to information is a fundamental human right.

It gives some parameters for the provision of that information including that the right is available only to citizens.

Secondly that the information to be accessed is not just that which is held by state but that with other people, the only qualification for this latter one is that the information is required for the exercise or protection of a right or fundamental freedom.

The existence of this constitutional provision while important is not adequate. Litigation since the adoption of the Constitution has also revealed the need to clarify some issue, including who a citizen is, the place of corporations in accessing the information.

Other issues requiring attention include how to balance disclosure with protection of commercial secrets, balance between access to information and protection of national security interests.

The nature of the extractive industry with its being corruption prone, the technical nature of the industry, and the complexity of the issues to be addressed all justify the need for availability of information. Information will help demystify myths, enable citizens to understand the industry, empower citizens to engage with the processes and decisions thus enhancing accountability and transparency.

Access to information will serve to promote objective discussions and engagement. It will enable the media to also improve the extent and accuracy of their coverage and consequently ensure that both citizens and investors engage more freely and from a common factual base.

Parliament as the legislative arm should prioritise the enactment of an Access to Information Law. In discussing the law, the involvement of several sectors of society, including at the county level is important.

We need to ensure that the law when enacted responds to the specific challenges of the extractive industry, is in line with and does not negate the constitution and also is popularised and implemented effectively.

Dr Odote is a senior lecturer, Centre For Advanced Studies in Environmental Law and Policy, University of Nairobi.

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