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Economy

Kenyan firms slow in enforcing Access to Information Act

A Base Titanium official displays minerals produced at their Kwale factory. The firm says it is not subject to the information access law.  FILE PHOTO | NMG
A Base Titanium official displays minerals produced at their Kwale factory. The firm says it is not subject to the information access law. FILE PHOTO | NMG 

Companies in Kenya have been caught flat footed in implementing new anti-secrecy laws and are now scrambling to comply.

The Ombudsman has already warned private companies that they face being barred from doing business with the government if they fail to disclose information as required in the Access to Information Act which took effect on September 21, 2016.

Top on the list of what firms are required to do to comply with the Act is appointing a dedicated information access officer — who will process requests for information by the public.

Whilst the law by default identifies the CEO of a company as the information access officer, best practice is to assign an officer to receive and process requests for data.

Companies as well as State agencies are also required to have a tab on their website clearly marked Access to Information where members of the public can lodge requests online.

The Business Daily reached out to more than two dozen companies to enquire on their preparedness and compliance with the Access to Information Act.

Entities obliged to make information public on request include those which receive taxpayer funds, companies which provide public services such as telcos and banks, and those exploiting natural resources such as oil and mineral wealth.

Private firms found guilty of failing to provide necessary information to wananchi face a Sh0.5 million fine and an embargo from transacting business with the national or county governments.

Millers, for example, who are currently enjoying taxpayer-funded subsidies amounting to Sh6 billion to buy cheap maize are now subject to the freedom of information rules.

Base Titanium, which in February 2014 began exports of titanium ore — rutile, ilmenite and zircon — from Kwale, said they were not subject to the information laws.

“We are not aware of any section of this legislation that is applicable to us,” said Joe Schwarz, Base Titanium general manager in charge of external affairs and development.
The Act is meant to operationalise Kenya’s Article 35 of the Constitution which provides for access to information held by the government as well as by another persons or entities which is “required for the exercise or protection of any right or fundamental freedom.”

Anti-secrecy laws

This means that citizens can file a request for information seeking details of the value of the mineral wealth being mined, the profits they are raking, and how they are sharing earnings with the host community.

Tullow Oil, which announced Kenya’s first commercial oil discovery in March 2012, said its press and communication team was in charge of handling access to information requests.

CEOs of private firms which fail to publicly name their designated information officers face a Sh300,000 fine and a six-month jail term for obstructing access to data.

“Members of the public can put in requests for information using the contact details indicated on http://www.tullowoil.com/ or by sending an email to: [email protected] The communication team is tasked with responding to AITA requests,” Tullow Oil told the Business Daily.

Under Kenya’s anti-secrecy laws, anyone can petition Tullow Oil to make public the production sharing contract it has signed with the government of Kenya. Article 19, a body which fights to promote freedom of expression and information, said the Kenyan government has been slow to implement the new law.

Henry Maina, Article 19 regional director in charge of Eastern Africa, said public bodies must be at the forefront of implementing the access to information laws.

“There is slow implementation of the law. The executive is not owning the law. The ministry is yet to gazette regulations on cost, time and designation of bodies as either public or private,” Mr Maina said in an interview.

He said that individuals and firms have gone to court to enforce their rights to access information, helping set precedent on this fundamental right.

Nairobi Law Monthly, backed by lawyer Ahmednasir Abdullahi, took Nairobi bourse listed electricity generator KenGen #ticker:KEGN to court in 2011 for failure to avail information relating to a disputed tender for drilling geothermal wells.

Even though judge Mumbi Ngugi ruled that the rights of Nairobi Law Monthly were not breached, she asserted that companies have the obligation to make information public upon request.

“This petition succeeds to the extent that I have found that the 1st respondent (KenGen) has an obligation, on the request of a citizen, to provide access to information under Article 35(1)(a) of the Constitution,” ruled judge Ngugi on May 13, 2013.

The High Court also clarified that the right to information can only be enjoyed by natural persons, and not corporate bodies. “A natural person who is a citizen of Kenya is entitled to seek information under Article 35(1)(a) from the respondent, and the respondent, unless it can show reasons related to a  legitimate aim for not disclosing such information, is under a constitutional obligation to provide the information sought.”

Siginon, a logistics firm, said it does not fall in the category of firms that should provide information to the public.

“Siginon does not qualify as a private body and as such the act does not apply to it,” the company said.

In the US, a freedom of information access request was made regarding a transport firm which revealed that the company had been fined $155,000 (Sh16 million) between 2004 and 2006 for logbook violations.

Unilever, a fast-moving consumer goods maker, said provisions in the access to information law do not apply to it.

Instead, the firm said, its customer care channels process information requests.

“Unilever is not a public entity and hence there is no obligation for the said designation,” the firm told the Business Daily.

“As is the practice with many FMCG companies, we have dedicated customer service channels where we receive and address all consumer queries.”

KCB, Kenya’s largest bank, was yet to respond to our queries three weeks later despite promising to do so. “Our legal team is studying it and will provide a response tomorrow,” the bank said in an email response dated May 11, 2017.

Enquiries to Safaricom #ticker:SCOM, Airtel, Telkom Kenya, Equity Bank #ticker:EQTY, Bidco, Nakumatt, Tuskys, University of Nairobi, Coca Cola, and Kenya Power #ticker:KPLC did not yield any responses regarding their preparedness on the access to information laws.

The Ombudsman; the body charged with the responsibility of enforcing compliance with the freedom of information law, has promised to fully enforce the legislation.

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