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There are several benefits to be gained if information is made available to the public. Primarily, access to the right information has an impact on the enjoyment of other fundamental rights including life, health and education. It has effects on all other spheres of life, be they political, economic, social or cultural. The provision of accurate information gives individuals the data and knowledge they require in order to participate effectively in the democratic process in any politicised society. An informed public is more likely to contribute to the economic development of any society than an ignorant public, and may also act as a guard against corruption within and outside of government.
Over the past three decades, Kenya has struggled with a lack of government transparency. However, all is not lost. Transparency, accountability and participation are now entrenched in Kenya, sitting at the heart of the 2010 Constitution of Kenya. Similarly, a number of international and regional treaties that create clear legal obligations and commit the government to enacting and implementing comprehensive right to information laws, as well as to sharing periodic implementation reports, also now form part of the country’s law.
As one of the 16 countries in Africa whose constitutions expressly provide for access to information, Kenya has recently made significant steps to improve access to information despite the lack of right to information (RTI) legislation. With initiatives like the Kenya Open Data Initiative (KODI), the development of a detailed ICT Master Plan, and its subsequent implementation creating the national ICT infrastructure and commitment to the Open Governance Partnership (OGP), Kenya has shown a willingness to establish a culture of openness in governance.
However, there still exist legislative, institutional and political barriers. Beyond the lack of comprehensive legislation, other significant challenges include the lack of any clear implementation and complaints mechanism; citizens’ lack of awareness of their right to information; an entrenched culture of secrecy; and public officials’ limited understanding of their obligations under the RTI.
Right to Information (RTI) laws offer guidance by proposing minimum standards for mechanisms which the public can use to request information from state and public institutions and relevant private bodies. These laws usually validate the right to information with a presumption in favour of granting access, setting timelines within which requests must be processed and making recommendations regarding associated costs.
Where the presumption in favour of granting access is concerned, laws often spell out provisions for proactive disclosure, clearly establishing a legal obligation on state and public authorities not only to respond to requests but also to “push out” information. Such laws also establish any exemptions from access, such as the protection of privacy, trade secrets, and national security. Thus, even though Kenya has instituted different open data initiatives and launched e-government services, it is critical that a comprehensive right to information law is enacted to clarify how the constitutional provisions are to be implemented and create clear structures for oversight.
This working paper seeks to achieve five main purposes. First, it seeks to underscore the importance of enacting a comprehensive RTI law, both as a legal obligation (internationally and locally) and as a positive practice for a country that is seeking to be inclusive, open and accountable in its management of public affairs. Second, it shows what has already taken place on the road to developing a comprehensive access to information law in Kenya, and comments briefly on the Access to Information Bill, 2013. Third, it makes a brief assessment of the extent to which different public bodies have implemented constitutional guarantees for access to information in the first four years of constitutional implementation. Fourth, it aims to create awareness and clear understanding of the policy issues which different stakeholders and public bodies must consider as they seek to implement the Constitution’s provisions on access to information. Lastly, it puts forward recommendations to those bodies and parts of society which are critical to the full realisation of the right to access information in Kenya.
The paper is therefore relevant to both state and non-state actors. For instance, civil society organisations seeking to promote and defend the right to access information, especially those working with minority and marginalised groups like people with disability, will find clear provisions in the paper about how and where they can engage. It may also offer some guidelines to those groups that have previously conducted social accountability programmes.
For public bodies, especially Parliament, the Executive, the Judiciary and Constitution Commissions, the paper reiterates their individual and collective roles in promoting and defending the right to information. It also underlines how enhanced access to information may increase citizens’ trust in public bodies and enhance the public bodies’ efficiency and effectiveness in public service delivery.