Kenya has become the 19th African country to pass a law that obliges all public entities to disclose information upon public request. Kenyans will be able to ask for information from public organizations about their activities, employees and their salary scales, among other details.
The Access to Information Act of 2015 [PDF] was signed into law by President Uhuru Kenyatta in August of this year, enabling the public to put all public and private entities to task to explain their actions, policies or decisions upon request.
Among the Act’s provisions for the disclosure of information is a requirement that government makes it public all the relevant facts while formulating important policies that may affect its citizens. This provision makes it possible for the public to participate in policy formulation.
The principal object of this Bill is to give effect to facilitate access to information held by Government Ministries and other public authorities. The Bill recognizes access to information as a right bestowed on the Kenyan people, and seeks to promote proactive publication, dissemination and access to information by the Kenyan public in the furtherance of this right. It also spells out the mechanisms for ensuring public access to information, as well as the factors that may hinder the right to this access. The Bill is borne of the realization that access to information held by the Government and public institutions is crucial for the promotion of democracy and good governance. The Access to Information Bill, 2015
Before the enactment of this bill into law, access to information in Kenya was for a long time inhibited by legislative provisions that restricted sharing of information by government and public entities, in the process excluding citizens from decision making in public affairs.
Examples of such legislations that have provisions that restricted access to information by the public include the Official Secrets Act, the Evidence Act, and the Preservation of Public Security Act, which allowed for restriction of access to information that was deemed 'sensitive', with the definition of what actually qualified as sensitive information left to the authorities. As a result, essential information was kept out of public hands.
Access to information is recognized internationally as fundamental in a society that is governed by the rule of law, as it provides individuals with the knowledge required to participate effectively in the democratic processes. Knowing what the Government is doing is also key to providing oversight, ensuring accountability in the long run.
Time to Process Access to Information
The Act stipulates a timeline of 21 days to access the information sought by the public from the government or public entities without any undue delay and without rejecting it on any grounds. In the event the information sought concerns the life or liberty of a person, the period of getting such information is reduced to 48 hours.
The CEO of the receiving entity from which the information is sought may extend the period for response upon receiving the request on grounds that; the information sought entails a large amount of information and as such the given timeframe will interfere with the credibility of the information sought, or if there is need to consult in order to comply with the requested information and as such the consultations cannot be completed within stipulated time. The Act however gives the information officer a period of not more than 14 days in the event of the above exemptions.
The Act restricts the public from getting information that may otherwise undermine the national security of Kenya, such information which cannot be disclosed if sought by the public from state or public entities include; military strategy, intelligence activities and their sources, foreign relation affairs and cabinet deliberations and records.
Other forms of information which is deemed classified and may not be given upon request by the public from state according to the Act include; if the information sought puts the health or life of any person in danger, if the information infringes the privacy of an individual and the confidentiality of the profession of an individual and if the information prejudice the commercial interests on intellectual property rights.
However, the above exemptions can be outweighed by the plea of a public interest if the applicant to the information sought makes an appeal to the Court of law.
Despite anything contained in (this law), a public entity or private body may be required to disclose information where the public interest in disclosure outweighs the harm to protected interests. The Access to Information Bill, 2015
Redress in the event of a delay
The Act articulates the channels to be followed in case the government withholds information. It also prescribes the procedures for complaints, and confers upon the Commission on Administrative Justice enforcement and oversight powers.
If the government refuses to grant access or hides some of the information through redaction, or if the public servant asked for specific information charges exorbitant fees, gives stale information or refuses to update existing information that is out of date, then the public can report the matter to the Commission on Administrative Justice for review and enforcement orders. If found guilty, civil servants will be fined up to Sh50,000 or spend three years in jail.
The Law will enable both the citizens and the media to obtain the important information that can be used to hold the government of the day accountable to the public.