By Sarah Wesonga – Programme Officer Transparency and Access to Information at ARTICLE 19 Eastern Africa
Five years after the enactment of the Access to Information Act, Kenya still struggles with the implementation of this legislation.
Enacted on 21 September 2016, the Access to Information Act gave life to Article 35 of the Constitution of Kenya 2010; which guarantees every Kenyan the right to seek access and obtain information from public bodies and private bodies acting in a public nature. This right is also anchored in global and regional instruments ratified by Kenya, such as Article 19 of the International Covenant on Civil and Political Rights and Article 9 of the African Charter on Human and Peoples’ Rights. The latter is further elaborated through the Declaration of Principles on Freedom of Expression and Access to Information in Africa.
In addition, in 2018, President Uhuru Kenyatta issued an Executive Order directing all public institutions to fully disclose and publish public procurement information and manage them through a centralized electronic platform. This order strengthened the right of access to information in the country. Makueni was the first county to set up open an open contracting portal using open data and detailed disclosure of public information about each of the procurement processes. Elgeyo Marakwet county followed suit in April 2021.
Progress on Access to Information
Advocacy on access to information in Kenya has always been a multi-stakeholder effort with civil society being at the forefront. After the enactment of the ATI Act, the focus shifted to its implementation. This included supporting duty bearers to understand their role and mandate as provided by law, creating awareness amongst rights holders and supporting the Commission on Administrative Justice (CAJ) to effectively fulfil their mandate.
Civil society has partnered with the CAJ to undertake numerous awareness and sensitisation training forums for public officers, particularly within the counties, on their roles in the implementation of the ATI Act. The Commission together with the Kenya School of Government, the Local Development Research Institute (LDRI) and ARTICLE 19 worked together to develop an access-to-information curriculum that targeted key implementers of access to information, including chief executive officers, information-access officers, mid-and top-level directors, heads of human resources, and complaints handling committees.
Access to information at the county level has been a work in progress with counties like Elgeyo Marakwet, Makueni, Nandi and Isiolo being exemplary. For instance, last year Elgeyo Marakwet was the only county to publish all seven of its budget documents as required by Kenya’s Public Finance Management Act of 2012. Additionally, the CAJ developed a model law on Access to Information for county governments and so far counties five counties – Embu, Kisumu, Bomet, Kwale and Kiambu – have passed the County ATI Law.
Despite these initiatives to enhance transparency and fulfil the right to information, execution has been slow and allegations of opaqueness stemming from a culture of secrecy remain widespread. For instance, despite multiple information requests, the government has continuously failed to disclose information relating to the KES 450 billion Standard Gauge Railway (SGR) contract. On 21 June 2021, a petition was filed at the High Court of Mombasa on behalf of The Institute for Social Accountability (TISA) and Okoa Mombasa, demanding the disclosure of SGR contracts and seeking to obtain agreements and studies related to the construction and operation of the Standard Gauge Railway (SGR).
In addition, in the context of the pandemic, various State and public entities have failed to provide timely and accurate information relating to COVID-19 response and management. The Kenya Legal & Ethical Issues Network on HIV and AIDS (KELIN), Katiba Institute, Transparency International Kenya and ten others filed a petition at the Constitutional and Human Rights Division of the High Court, asking the government to provide data supporting the enactment of the Covid-19 regulations including mandatory quarantine and support that had been provided to health workers.
Protection for whistleblowers is also a fundamental principle of Access to Information. Individuals who release information on wrongdoing – whistleblowers – must be protected from any legal, administrative, employment-related sanctions, reputational and physical harm. Unfortunately, Kenya has a history of failing to protect whistleblowers. This is evident by the outcome of the cases of David Munyakei in the Goldenberg scandal, John Githongo in the Anglo-Leasing scandal, Spencer Sankale in the Mara Heist, Ali Gire the Kenya Airways employee who blew the whistle on the China Southern flight debacle and most recently the grisly murder of Ms Jennifer Wambua, who was working at the National Land Commission and was reportedly a key state witness in a corruption case. The lack of overarching comprehensive legislation to protect whistleblowers in Kenya has not only left them vulnerable to retaliation but has also exacerbated the culture of silence and secrecy, allowing corruption and abuse of office to thrive.
Why regulations matter
The full realisation of the right of access to information depends upon the issuance of regulations by the Cabinet Secretary of ICT, Innovation and Youth Affairs as required under Section 25 of the Act. Without these regulations in place, there is a lack of clarity concerning how information can and should be requested, the format in which the responsible authorities should provide information, as well as remedies in the event of non-compliance, among other things.
Since 2018, there has been an ongoing initiative to develop the Access to Information Regulations through a collaborative effort between the CAJ, the Ministry of ICT, the National Law Reform Commission (NLRC), and ARTICLE 19 as a representative of the civil society. In June 2021, the Commission on Administrative Justice published the regulations and is still seeking comments from the general public as part of the public participation process.
In advocating for the enactment of the regulations, there is a need to acknowledge that effective realisation of the right to information goes beyond the passage of the law. There is a need to accentuate its importance as a driver of accountability, transparency and good governance and in the realization of the Agenda 2030 Sustainable Development Goals (SDGs), and Vision 2030. While a lot of emphases has been placed on capacity building and awareness creation for public officials, citizens remain unaware of their rights of access to information. Much more still needs to be done.
An excerpt of this article originally appeared on the Star Newspaper