Kenya has made commendable strides in establishing a legal framework for access to information, yet significant improvements in implementation and data collection are still needed. Meanwhile, the alarming decline in the safety of journalists and human rights defenders underscores broader issues of human rights abuses, crackdown on dissent, and erosion of civic space. The recent Voluntary National Review (VNR) assessing Kenya’s performance on Sustainable Development Goals (SDGs) is crucial in raising global awareness and holding the Kenyan government accountable for these pressing issues.
The High-Level Political Forum on Sustainable Development (HLPF) took place from Monday, 8 July to Wednesday, 17 July 2024. As part of the global framework for the 2030 Agenda for Sustainable Development, member states are encouraged to ‘conduct voluntary regular and inclusive reviews to assess progress at the national (VNR) and sub-national levels (VLR),’ which are country-led and country-driven. These national reviews serve as a basis for the regular reviews by the HLPF.
On 12 July 2024, Kenya submitted its 3rd Voluntary National Report (VNR), reviewing progress on SDGs 1, 2, 13, 16, and 17. During its presentation, the government acknowledged notable progress across most goals. However, they expressed concerns over declining indicators for SDG 16, which aims to promote peaceful and inclusive societies, provide access to justice for all, and build effective, accountable institutions. This downtown underscores the critical importance of addressing freedom of expression as a critical component of sustainable development.
Slide presentation of Kenya’s VNR progress on SDG 16 as presented on 12 July 2024 at the HLPF by the government of Kenya
Worrying trends and freedom of expression on the decline
Kenya ranked 69 out of 161 countries in the 2023 Global Expression Report – ARTICLE 19’s annual review of the state of freedom of expression and the right to information around the world. This marks a slight decline from the previous year, dropping one place since 2022. The situation is even more alarming in the Reporters Without Borders’ 2023 World Press Freedom Index, where Kenya plummeted from 69th to 116th, marking the third biggest fall in that year’s Index.
ARTICLE 19’s monitoring of Goal 16.10 reveals a worrying trend: the protection for journalists, human rights defenders, whistleblowers, and protesters has deteriorated since Kenya’s last VNR. Some cases highlighting discrepancies from Kenya’s VNR include:
- In the period since Kenya’s last VNR report, the country had no verified cases of murdered journalists; however, on 23 October, 2022, Pakistani journalist Arshad Sharif was shot dead in a remote area outside the Kenyan capital Nairobi by a police officer.
- In April 2023, the Kenya Media Sector Working Group (KMSWG) reported an increasing number of journalists being harassed, attacked, and arrested while covering mass anti-government protests in Kenya since 20 March. Reportedly, KMSWG documented more than 20 cases of attacks and violations against journalists, including harassment, arbitrary arrests and physical attacks, with state actors responsible for or encouraging a significant proportion of these attacks.
- In the same period, the Media Council of Kenya (Kenya’s Media Regulator) also reported receiving reports of violent physical attacks on media personnel, including the destruction of their equipment and the information they had collated. In some cases, police confiscated journalists’ valuables. The Regulator warned that police officers attacking journalists undermines press freedom, limits the public’s access to information, violates human rights and can cause physical or psychological harm. They noted that journalists should be able to carry out their work without fear of violence or harassment, and that law enforcement agencies need to be held accountable for any actions that violate their rights or impede their ability to report on events.
- On 18 September 2023, journalists Mike Ndunda from Kamba TV, Athiani FM’s Richard Muasya and Boniface Mutisya of Mutongoi TV were covering a security operation at an illegal alcohol brewing den in Matungulu, Machakos County when they were reportedly attacked by a group of individuals as they recorded the operation.
- Similarly, on 5 January 2024, five journalists who had accompanied officers from the National Authority for the Campaign against Alcohol and Drug Abuse (NACADA) during a raid at the Kettle House Bar and Grill on Muthangari Road, Nairobi were also attacked. Jane Kibira, a camera operator at Kenya Broadcasting Corporation (KBC), and Boniface Bogita, a photographer at Nation Media Group, were attacked, with Kibira stabbed in the back and Bogita stabbed twice in the ribs, as reported by their respective media outlets. Another photographer, Bonface Okendo from The Standard Media Group, sustained arm and leg injuries during the attack, and his camera was confiscated. Jackson Kibet, a camera operator also from The Standard, escaped with minor injuries; his memory card was taken. Lawrence Tikolo, a camera operator at Citizen TV, was punched in the ribs, and his camera was vandalised. Bogita and Okendo received treatment at a hospital, while Kibira was discharged earlier.
Historically, Kenya has persistently failed to take action against those responsible for attacks on journalists, human rights defenders, whistleblowers, and protesters. The government has been largely ineffective in investigating these crimes and prosecuting the perpetrators and instigators. Despite state actors being responsible for a significant proportion of these attacks, there is an emerging trend of increased hostility towards the media, marked by public statements from key government officials condemning the press.
An egregious example of this hostility occurred on 19 June, 2023, when a senior government official targeted the media. In a series of tweets, a Cabinet Secretary referred to journalists working for the Nation Media Group (NMG), Kenya’s largest independent media organisation, as “prostitutes” and accused them of being corrupt and biased. The previous day, in an angry speech, the official had threatened to fire any government employees who provided NMG with advertising. His outburst was triggered by an investigative report by NTV, an NMG-owned TV channel, which exposed corruption within his ministry. The official has neither apologised for his comments nor faced any sanctions.
Another concerning trend was documented cases of security officers camouflaging as journalists covering protests with the intent to arrest protesters. The Media Council of Kenya warned that impersonation of journalists by the police is a severe professional misconduct on the part of the police and endangers the lives of genuine journalists in the line of duty. The failures to investigate and hold perpetrators and instigators to account have a chilling effect on freedom of expression.
Stronger progress on Access to Information is a necessity
SDG 16 requires states to adopt legislative and policy guarantees for public access to information and establish the necessary institutional frameworks to implement these guarantees. There has been substantial progress in these areas, particularly with the Access to Information (ATI) law. The promulgation of the 2010 constitution marked a new chapter for the right to information (RTI) in Kenya. It is important to highlight:
- The Constitution explicitly provides for access to information. In particular, Article 35 of the Constitution of Kenya 2010 recognises and guarantees citizens’ right to access information. This is explicitly supported by multiple other provisions including Article 33 on Freedom of Expression, Article 232 on Values and Principles of Public Service and Article 2 (6), which says: “Any treaty or convention ratified by Kenya shall form part of the law of Kenya under the Constitution.” Kenya has ratified several regional and international instruments that contain provisions relating to access to information, which now apply as law and are enforceable in courts of law.
- The Constitutional guarantee of the right to access information constitutes the legal basis for the enactment of the Access to Information Act 2016, which was passed into law on 31 August 2016. The Act provides a framework that encourages proactive disclosure by public and private entities; facilitates disclosure by private entities; promotes a culture of openness through periodic and regular disclosures by public entities; makes provision for the protection of informers; and raises public awareness on the protection of the right.
- At the county level, Section 87 of the County Government Act, 2012 recognises that timely access to information, data, documents and other information relevant to policy formulation and implementation is one of the main principles influencing citizen participation in the management of the county government. Part IX of the Act addresses Public Communication and Access to Information, while Section 93 sets out the principles for public communication and access to information. Sections 95 and 96 equally have explicit provisions on ATI. Section 96 in particular requires all county governments to enact an access to information law.
Kenya has made strides in implementing the law, making significant steps towards reaching Goal 16.10. In operationalising the law, some commendable progress has been made, for instance:
- Since 2018, the Commission on Administrative Justice, the Ministry of Information and Communications Technology (ICT), the National Law Reform Commission (NLRC), and ARTICLE 19 have successfully collaborated in drafting the Access to Information Regulations. These regulations mark a significant stride toward realising the right to access information in Kenya: they provide greater clarity on the process for requesting information, the format for information provision by responsible authorities, and avenues for appeal in cases of non-compliance. The regulations, gazetted in 2023, were officially enforced in March 2024 after undergoing the parliamentary process required for all statutory instruments in Kenya.
- ARTICLE 19, in collaboration with the Commission on Administrative Justice, and the Kenya School of Government, developed a comprehensive curriculum on access to information. This curriculum, along with a facilitator’s training guide, is designed for a course titled “Access to Information in the Public Service.” The course aims to equip key government officials, including chief executive officers, information access officers, and heads of human resources with the necessary knowledge and skills to effectively fulfill their roles in promoting transparency and accountability.
- Kenya has actively participated in the Open Government Partnership (OGP) since 2011 and has bolstered its commitment to transparency. The OGP promotes increased access to information through multi-stakeholder collaboration between governments and civil society actors. Kenya’s periodic National Action Plans under the OGP framework include specific commitments to safeguarding and promoting access to information, further enhancing governmental accountability and responsiveness.
While Kenya has made substantial strides in establishing a robust legal framework for access to information, the practical implementation of access to information laws faces significant challenges. Public institutions often exhibit a lack of responsiveness to information requests and mechanisms to appeal against denials are not consistently effective. This gap highlights the need for improved adherence to legal requirements for information disclosure, ensuring that citizens can access information in a timely and meaningful manner. Additionally, there is a critical need for enhanced public awareness and education about the right to access information and the procedures for exercising this right. Many citizens remain unaware of their entitlements, hindering broader utilisation of the access to information framework.
Additionally, there is a critical need to improve data collection and reporting on the implementation of access to information laws. While the Commission on Administrative Justice (CAJ) oversees compliance with access to information laws, its effectiveness is constrained by resource limitations and the need for stronger enforcement authority. Comprehensive data collection on the use of access to information laws is lacking, limiting the ability to assess their impact and identify areas for improvement. Strengthening monitoring systems and enhancing the CAJ’s capacity to enforce compliance are essential steps to ensure that access to information laws contribute effectively to transparency, accountability, and inclusive governance in Kenya.
Tackling the freedom of expression crisis in Kenya
Kenya’s recent submission to the Voluntary National Review (VNR) underscores the critical importance of freedom of expression in achieving the SDGs. Despite this, the current situation in the country remains juxtaposed with this reality, where over the past few weeks, Kenyan youth in a revolutionary people-driven movement took to peaceful demonstrations in cities and major towns nationwide. Despite their right to peaceful assembly, they are consistently being met with a violent response from law enforcement agencies through widespread violations of the right to life, freedom of assembly, picketing and protests, freedom of expression, freedom of the media, disruption of the internet and right to a fair trial.
The Kenya National Commission on Human Rights, the country’s constitutionally established body, mandated with the protection and promotion of human rights, has so far reported the deaths of over 39 persons and injuries to more than 361 during the protests. Additionally, the abduction of protesters, human rights defenders, and citizens at large has been disturbing, with 32 cases of abductions reported and 627 instances of arrests of protesters. ARTICLE 19 Eastern Africa has reported allegations of the internet being shut down and the use of geospatial data to locate and abduct protesters. As Kenya reflects on its progress towards the realisation of Agenda 2030 on SDGs, it is important to acknowledge that safeguarding freedom of expression not only enables the protection of other rights but also facilitates the realisation of the SDGs. It is crucial to review SDG 16.10 in light of the ongoing violations related to civic space in Kenya to ensure that no one is left behind.