Freedom of Information Day

Today we mark the freedom of information day, a day set aside to raise awareness about the right to freedom of information, held by the Government.

The Constitution of Kenya

The right to access to information has been recognized in Kenya’s Constitution under Article 35. The President of Kenya, Mwai Kibaki and Prime Minister, Raila Odinga have on several occasions reiterated their support for freedom of information.

In spite of this, Kenya does not have an access to information law. Although such a law will play a critical role in fighting corruption and promoting transparency, accountability and public participation, it has not received the priority it requires.

A freedom of information law will play the distinct role of providing procedure to acquire information such as those on devolved funds, budget information and address complaints, and exemptions within the law.

Development of Laws

It is worth noting that some of the laws being developed contain provisions that are intended to curtail freedom of information, these include the National Police Service Act and Independent Electoral and Boundary Commission Act. This is unfortunate and promotes retrogression instead of development.

Many of the legal provisions that curtail freedom of information are based on misconceptions. One such misconception is that the right to information is a risk to state security, yet this can be addressed through exemptions instead of limiting access to information through blanket provisions. If left unresolved, these laws risk being declared unconstitutional and the civil society will not hesitate to bring the matters for interpretation to the High Court.

Vetting and Public Appointments’ Processes

We support efforts to instill transparency in the appointment of public officials. This is a good precedent that Kenya has set. This will continue to encourage public participation in the process and also build confidence in the integrity of the process and of the candidates. It is commendable that the pieces of legislation so far developed have considered public participation in the appointment process.

With regard to vetting, we acknowledge that efforts have been made towards development of vetting guidelines, and specifically by the Ministry of Public Service. However this process is long overdue and requires opening up to public participation. The Kenyan public awaits the vetting of members of the Judiciary and members of the national security organs. We emphasize and demand that the process of public participation must continue in the vetting exercises. The attempted vetting of police officers earlier in the year was against the ideals that have been set in the Constitution therefore rendering the process unconstitutional. All vetting should be done in accordance with the ideals of the Constitution.

Information Systems in Public Institutions

A year after the Constitution was promulgated many public institutions still lack the education and training necessary to effectively undertake constitutional implementation. A policy on how public institutions can handle requests for information and store their documents in an accessible manner is yet to be made available to the public. The Ministry of Information is yet to develop guidelines to guide the process.

There is need for government institutions to stock take and evaluate their compliance with constitutional provisions or risk being transgressors of the constitution.

Anti-Corruption Efforts

The Government must wake up to the new reality borne by the Constitution that gives a great sense of being to transparency and accountability. Being a constitutional right, access to information takes precedence over legislation such as the Official Secrets Act which has been used repeatedly in the past to hold back vital public information thus fuelling a facilitative environment for corruption and impunity to thrive. Kenyans are still oblivious of the outcomes of various corruption investigations and commissions of inquiry for example the Commission of Inquiry on the irregular sale of the Grand Regency Hotel (Cockar Commission) and the Commission of Inquiry on the activities of the Artur brothers (Kiruki Commission) among others.

This would not be the case if freedom of information was the rule. Several graft scandals in the public sector could have been averted if interested parties and the public had open access to information on various processes such as budgeting, allocation and expenditure of funds, procurement of goods and services, vetting and appointment of public officers among others. Access to such information will enable citizens to receive information in the possession of any public body funded by tax-payers’ money. It is also the key that will open the door to critical information required to hold public officials accountable.

Efforts to secure the independence of the Ethics and Anti-corruption Commission must be guarded jealously to ensure that the commission is not hindered from doing its investigations independently by being denied material information.

Access to information and education

Lack of access to information has become one of the major problems that has led to corruption and embezzlement of funds at the Ministry of Education. Endemic corruption has led to embezzlement of funds and has impeded access to education as required by Article 43 (f) and Article 53 (b) of the Constitution. Besides the government instituting radical reforms at the Ministry of Education, there is need to make those found to be culpable in the acts of corruption surcharged and or prosecuted. This will act as a deterrence measure. All taxpayers in this country have the right to demand for full disclosure of how funds are spent in the education sector.

Women’s rights

The Kenyan Government and media should facilitate women’s access to information and ensure all data and other information is disaggregated by gender. This will enhance the monitoring of implementation commitments on gender equality, and delivery of services and resources targeting women.

Citizens of Kenya

We urge Kenyan citizens to be vigilant towards the ongoing processes of public appointments, development of laws and budget making as stakeholders in the constitutional implementation process.

Citizens of Kenya should not shy away from demanding information from the government on various development projects and matters of public interest.

The Freedom of Information Network has launched “the yellow movement” and we will wear a yellow ribbon to demonstrate support for the freedom of information campaign in Kenya. We ask all citizens to wear it in solidarity.

Freedom of Information Network

Supported by:

ICJ-Kenya

Transparency International Kenya

Elimu Yetu Coalition

Kenya Human Rights Commission

Centre for Governance and Development

The Institute of Social Accountability

FEMNET

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