Article 35 of the Constitution reaffirms the right of the people to access information from government and private entities.
The enactment of the Access to Information Act, which took effect in September 2016, was a bold and unequivocal statement aimed at enhancing good governance in the country, and also enabled Kenya to meet its obligations on access to information under the various international legal instruments.
Access to information is critical for enabling citizens to exercise their voice, to effectively monitor and hold government to account, and to enter into informed dialogue and participation about decisions which affect their lives.
It is seen as vital for empowering all citizens, including vulnerable and excluded people, to claim their broader rights and entitlements. But the potential contribution to good governance of access to information lies in both the willingness of government to be transparent, as well as the ability of citizens to demand and use information.
Indeed, a well-implemented access to information law is an instrument that governments can use to learn from past successes and mistakes.
Over two years since the Access to Information Act came into force, there has been progress where citizens have made close to 4,934 requests for information to both public and selected private bodies with 244 public institutions and 43 county governments making strides by appointing the Information Access Officers (IAO) and a good number of institutions proactively disclosing information as outlines in Section 5 of the Act.
Despite the successes, there are challenges in the implementation of the Access to Information law with the major challenge being the absence of regulations making implementation and enforcement of the law difficult.
Additionally, with the deadline for digitalisation of records having elapsed in September, 2019 most if not all public entities are yet to fully digitise their records due to lack of resources to put in place the digital records management infrastructure.
If there are no records to be found, or they are so unorganised that locating them becomes an insurmountable obstacle, the access to information law is meaningless.
In order to respond to requests, an adequate information management system must be designed and established. All public entities should as a matter of priority organise and identify the information they hold and create a data base of the records that exist. This is as important for the holders of information as it is for the potential requesters.
Without knowing what records there are and where they are located, an implementation of the law seems unlikely to be anything other than frustrating for both holders and requesters. There is no value in a right to access to information if no reliable document exists.
Record-making standards also must develop and mature, and should not be created simply to satisfy some administrative requirement with no clear understanding by the public officers of its use or importance.
As the public institutions strive to meet their obligation on proactive disclosure, the emphasis on the “supply side,” ensuring the success of an ATI law is a matter of co-responsibility. Not all the burden lies with government: citizens, civil society and community organisations, media, and the private sector must take responsibility for monitoring government efforts and using the law.
Without an adequately developed “demand side,” the law is likely to wither on the vine. In other words, the demand and supply sides must match, and where they intersect will determine the quality of the transparency regime.
Without an equivalent demand for information, government will inevitably stop directing human and financial resources toward the implementation and administration of an access to information regime.
Thus, the response from the groups needs to be energetic, committed, and long term.
It is important also to note that the Implementation of an access to information law is complex, and another common challenge may include difficulty in adjusting the mindset of the bureaucracy and people who hold the information; a lack of capacity in relation to record keeping and record making; insufficient resources and infrastructure; inadequate staffing in terms of training, specialization, and a lack of capacity building or incentive systems.
The enabling legislation on the right to information should be seen as a three-phase process: passage, implementation, and enforcement of the access to information law.
Edward Cedric Opany, Development Communication Specialist