Access to public information an uphill struggle in Kenya despite law

A recent legal tussle between lawyer Apollo Mboya and utility firm, Kenya Power over inaccurate customer billing perhaps underlined the deep challenges in accessing information from public entities in Kenya.

In the duel that dragged on for months, the lawyer had sought detailed filings of consumer billing records by Kenya Power amid widespread claims of inaccuracies.

Although the matter was later settled out of court, it exposed the frustrations thousands of Kenyans faced everyday despite the existence of a law that compels both private and public entities to disclose information.

The Access to Information (ATI) Act which took effect on September 21, 2016 gives citizens a chance to track what is going on within government, exposing corruption and mismanagement.

It is gives powers to citizens to question development programmes or services from public entities or private ones.

It is also a tool for seeking access to justice, getting to police and seeking reforms while upholding right to fair trial as well as acceptable level of violence from security agencies.

But many people are not aware of the law or understand how effective it can be in addressing some of the issues which affect them directly.

“We need to sensitise the public to seek information from relevant bodies on their own volition, many things are happening in the counties but citizens are unaware and it is upon us to make them aware. It is up to us to ensure that people have knowledge so that they can be able to demand their rights.,” Commission on Administrative Justice (CAJ) chair Florence Kajuju, says.

The official however raised concern that lack of regulations to work in tandem with the ATI Act as well as the introduction of the data protection bill pose a threat to the implementation of access to information.

Even though the data protection bill seeks to limit unwarranted access to people’s personal data by third parties, it is feared that security officials would greatly use it as a leeway to carry out blanket surveillance under the guise of national security.

There are also fears that the role of a data protection commissioner may hinder public access to crucial information.

“The data protection bill is very tricky as it is proposes to take the mandate of CAJ to a data protection commissioner, this is a challenge, because when the public seeks information, say from a ministry, the onus will be on the commissioner to decide whether to give it or not. Regulations will give us protection and a leeway to implement ATI,” said Ms Kajuju.

However, Yash Pal Ghai, a constitutional lawyer and academician, says all is not lost.

Prof Ghai says ATI Act can operate effectively with other provisions of the Constitution such as Article 35 which states that every citizen has the right of access to information held by the State or any other person and which is required for the exercise or protection of any fundamental freedoms.

He points out Article 10 which touches on principles of governance, Article 232 which deals with principles of public service and Article 56 that relates to minorities and marginalised groups as suitable provisions of the constitution which can promote usage of the ATI Act.

“Writing a letter to seek information is just a start, a lot more is required hence the ATI Act cannot stand alone. There are other good provisions in the constitution which can work with it,” said Prof Ghai.

But he is critical of the Judiciary for withholding or not making public judgments or court rulings delivered by judges or magistrates. He describes this as a “setback” to the implementation of ATI Act.

He says the ATI Act provides for the obligation to simply disclose information even if it provides for certain exemptions on matters that relates to intelligence and national security. He says the exemptions do not mean that information can be kept secret.

The ATI Act was first drafted in 2015 but it was passed in Parliament as well as signed into law in 2016. The first draft of its bill was sponsored by Nyeri woman representative Priscilla Nyokabi.

Uganda passed its law in 2005, Rwanda in 2011 and Ethiopia in 2008 while Malawi got it after Kenya in 2016.

Other eastern Africa countries such as Tanzania, Somalia, Eritrea and Burundi do not have such a law.

Elsewhere in the continent, South Africa got theirs in 2000, Angola and Zimbabwe in 2002, Liberia and Guinea in 2010 while Nigeria, Tunisia and Niger in 2011.

Outside the continent, India got its law in 2005, UK in 2000, US in 1976 and Mexico in 2002.

Sweden which is among the top five least corrupt countries in the world, was the first country to have this law in 1766.

According to the Commonwealth Human Rights Initiative (CHRI), a lobby which has been at the forefront of helping Commonwealth countries in coming up with ATI laws as well as overseeing its implementation, indicates that by 2010, more than 85 countries in the world had this law.

While it is referred to as access of information in Kenya, other countries refer to it as Right to Information, Freedom of Information law, Promotion of Access to Information law or Freedom of Information and Mass Media law.

Others call it organic law on the Right of Access to Public Information, Decree on Access to the Administrative Documents of Public Authorities or also Charter on Access to Public and Administrative Documents. In Ghana, it is called the Whistleblower Act of 2006.

Ms Sandra Waswa, a senior programmes officer at Article 19 , says having this law itself is not an end but the beginning of understanding the roles of those who are supposed to provide the information and those who are seeking information.

“This is a Kenyan thing, we could have excellent framework and laws but things are still not working, our challenge usually comes at the implementation level, application of those practices and incorporating international standards to ensure that we are attaining intended goals. This means that we have to now focus,” said Ms Waswa.

According to a status report from CAJ on the implementation of ATI in Kenya, the total number of complaints received by the commission between 2016 to 2018 is 71.

Out of these, 67 involved complaints filed against public entities while four of them were against private entities.

A total of 55 have been successfully resolved while 16 are in the process of being resolved.

And since Section 27 of the ATI Act requires Public Institutions to submit a report on Access to Information to CAJ covering the preceding year, latest statics show that a total of 2,664 requests were made during the financial year 2017/2018.

The report reveals that 2,440 requests saw information disclosed while 93 times the information being sought was not released but was instead declined.

Another 93 requests were transferred, 29 are still pending and nine were considered not actionable.

Ms Lucy Ndung’u, the commissioner for access to information with CAJ, said a taskforce on regulations of ATI Act has already been formed and is expected to provide a draft of the same in early 2019.

Ms Ndung’u terms the culture of secrecy in both public and private sectors as one of the challenges with the implementation of the ATI Act.

As a way forward, she says that the commission intends to ensure that public institutions are issued with guidance notes in order to aid implementation of ATI Act as well as countrywide sensitisation.

Journalists too can use ATI to get information for investigative journalism.

CHRI’s executive director Sanjoy Hazarika cited an example of an Indian journalist Shyamlal Yadav who has made 6,000 requests for his investigative stories which have led to change in government policy and public concern.

Inasmuch as access to information ensures that individuals have the right and essential material needed to solve problems and make better decisions, it plays a significant role in enabling citizens to see what is going on within government, exposing corruption as well as mismanagement, there needs to be a comprehensive review of legislation which continues to dictate the culture of secrecy.

Such laws include the Official Secrets Act, the Statistics Act (2006), the Public Archives and Documentation Act, and the National Assembly (Privileges and Immunities) Act besides the criminal defamation which was declared unconstitutional.