Freedom of Information

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Status of Freedom of Information in Kenya

There is no Freedom of Information law in Kenya, and therefore no proper framework exists in which to access information from public bodies as of right. The situation is further aggravated by legislations that inhibit or allow for the continued refusal of public bodies to disclose information/deny access to it.  ICJ-Kenya believes that access to information is a fundamental requirement for a democratic, free and open society.

The constitutional review process in Kenya offers renewed hope of an access to information law as well as its recognition as a fundamental right as provided for under the Universal Declaration of Human Rights.  ICJ Kenya is one of the leading organizations in Kenya advocating for Freedom of Information legislation, and is heavily involved in all sectors promoting access to information and governmental accountability and transparency.

Introduction

The Kenyan Chapter of International Commission of Jurists (ICJ-Kenya) is a non-profit non governmental organization that has a mandate to promote human rights the rule of law and democracy in Kenya and Africa.
 
ICJ-Kenya has been spear heading the freedom of information campaign in Kenya for the last ten years and heads the Freedom of Information Network, a network of civil society organizations that have been campaigning for the enactment of a freedom of information law in Kenya.

Background of Freedom of Information Status

There is currently no Freedom of Information legislation in Kenya. The Freedom of Information Bill was last in Parliament in 2007 as a private members Bill. The Bill however lapsed in the 1st reading, being that 2007 was an election year that could have contributed to the Bill not getting adequate debate time.

Following the 2007 elections, and the post election violence that followed, the calls for a freedom of information intensified, with the Commission of Inquiry into Post Election Violence, made recommendations for the enactment of a freedom of information law to allow for more accountability as well as assist towards the transitional justice processes, such as the Truth Justice and Reconciliation Commission and criminal prosecutions, in light of the crimes committed.

The Freedom of Information Bill 2008 was thus drafted as a Government Bill and was to be presented to Cabinet for discussion and later to Parliament. However despite numerous promises from the Ministry of Information and Communication that the 2008 Bill will get priority and will be introduced in cabinet and Parliament, the same is yet to be discussed. The failure of the Bill to get priority may be attributed to the discussions on the enactment of a Special Tribunal to try those who committed crimes during the post election violence and further the role of the Truth justice and Reconciliation Commission and legislation on Witness Protection. Having come from the post election violence it was a priority for the cabinet to deal with issues that would bring about stability.

Kenya is currently going through a constitutional review process that is part of the reforms agreed upon, during the negotiations that brought about the coalition government following the disputed 2007 elections and violent aftermath. Under the Proposed New Constitution, a freedom of information clause is provided for under the Bill of Rights at Article 35 tilted “Access to Information’’. The inclusion of the clause is a big gain for Freedom of Information in Kenya, and if the Proposed Constitution is affirmed at a referendum with the clause intact members of the public, civil society and members of the fourth estate may begin using the clause to demand for information from government thereby promoting transparency and accountability in government. The clause will also push the government to enact legislation on freedom of information as a priority in order to provide a framework in which the right could be exercised.

It has been communicated within Parliament circles and Government (read Office of Information and Communication) that the Freedom of Information Bill 2010, is to be tabled before cabinet and later Parliament. However with the Constitutional review process heavy on the agenda of cabinet and Parliament it will be fair not to be optimistic about the Bill getting the attention it deserves. The passing of the proposed Constitution with the freedom of information clause is the best option for realizing the fundamental right to access to information.  

Legal framework

There is no law in the country that directly obligates the government to avail documents, records or other government information to the public.

While Section 79 of the Kenyan Constitution  protects  the “freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference (whether communication be to the public generally or to any person or class of persons) and freedom from interference with his correspondence,” this freedom does not make it incumbent upon the government to avail information nor does it obligate  the state to put in place the institutional arrangements for access to information. 

Procedures for Accessing Information

There is no clear procedure/ standardized format for access to information.

There are a no written guidelines legislated with regards to obtaining information from the state as there is no main legislation to derive legislations from. Kenyans access information through unofficial channels or arrangements. These arrangements are:

  1. Through the Ministry of information and Communication. One of the core functions of the ministry is to enhance public access to information.No further structures are in place in the ministry.The office of the official Government Spokesman.The office co-ordinates plans and executes government communication.

  2. Parliament. Parliamentary Standing Orders provide an avenue through which parliamentarians can demand information from the government. This is through Personal statements, Ministerial statements, Questions and private Members motion among others. 

  3. Additional Fora. These are such as Provincial Administration ‘Barazas’ (provincial meetings with the area Provincial Administrator. At a lower level it involves District Commissioners and Chiefs). 

  4. Local Authority/ Municipal meetings. Members of the Public are notified of the meetings in which development projects are discussed and feedback is relayed on progress. Members of the public are also able to request additional information on development projects and other matters of concern.

  5. Websites. Ministries have put up websites in order to be IT compliant however information from these are incidental to their objectives and not specifically targeted.
 

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