Thoughts on the Access to Information Act, 2016

Do you want to know exactly how much Ezekiel Mutua and his noxious Facebook posts cost the taxpayer? Or how much, and to whom, was the contract awarded for the road making its nth appearance on #WhatIsARoad? Fear not, the Access to Information Act, 2016, (“the Act”) is here, after of course, we at Obiter Dicter ironically asking to access the said Act from the good people over at Kenya Law.

 

That aside, we finally got it. Here are some thoughts on the Act.

Objectives of the Act

This law was enacted to further the right to access information under Article 35 of the Constitution of Kenya. At a cursory glance, this Act is not bulky and is quite easy to read.  It defines the scope of information that could be released to the public and the procedures to be followed in requesting for information, including review and appeals procedures.

Information: What’s hot? What’s not?

This information could either be held by the State, or by any other body, as long as the information is required for the exercise or protection of any right or fundamental freedom. This could be particularly helpful to obtain information held by private bodies, as long as the need to exercise or protect a fundamental right or freedom is demonstrated.

The Act provides that the kind of information sought from a public body could include its functions, its officers, their powers and duties, their salaries, or what they do basically. It also extends to tenders and contracts, details of which (the contract sum, the name of the contractor, the expected time of completion) must also be published on websites. The information is free of charge for inspection (for public offices). For copies, reasonable costs have to be charged.

Further, the presumption under the Act is that there is a general duty to disclose; unless there are compelling reasons for non-disclosure. This could include that the information sought would undermine national security, unnecessarily intrude into breaches of privacy and professional confidentiality, for example, trade secrets and intellectual property. You cannot make a request to access covert operations, the Coca-Cola formula or ask a lawyer to snitch on their client, for example.

How to access information

To process requests for information, each body (public or private) must designate an information access officer. These requests must be written, although special dispensation and assistance must be given to the illiterate or persons with disabilities. The timeline for the request is ordinarily twenty-one (21) days, with extensions of at most fourteen (14) days if the information is bulky. If one does not receive any information within the stipulated timelines, then the request is deemed to be rejected.

The role of the Ombudsman

Reviews are handled by the Commission for Administrative Justice (otherwise known by its catchier synonym, the Ombudsman). A person dissatisfied with the quality (and quantity) of information may apply for review to the Ombudsman within 30 days. The Ombudsman may also investigate and inquire into reports of non-compliance with the Act. Persons further dissatisfied with the decision of the Ombudsman may appeal to the High Court.

Whistleblower protection

The Act also protects whistleblowers, as long as they can prove that disclosure was done in the public interest (which has been strictly defined in the Act as violations of law and human rights, corruption and mismanagement of funds, abuse of office, conflict of interest and dangers to public health, safety and the environment). This is particularly important as we live in a country where whistleblowing is akin to painting a bull’s-eye on your back (remember Munyakei, Githongo, anyone?)

Digitization and computerization of government records

Finally, the Act provides that all records held by a public body should be digitized with three years of the Act’s application , to facilitate access to information.

Opinion and conclusion

The Act is good for Jicho Pevu types who would want to access government information, which would ordinarily not be accessible under the previous legal regime. There is additional protection for genuine whistleblowers. However, there is a massive hurdle to be overcome, namely, a shifty government bureaucracy that could very easily hide behind the exceptions provided under the Act. For example, if we were to really ask what happened at El Adde, Government would swiftly hit us with “national security” as it falls under “military strategy, covert operations, doctrine, capability, capacity or deployment”, “vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans or protection services relating to national security” or my personal favourites “information that is referred to as classified information in the Kenya Defence Forces Act;” and  “any other information whose unauthorized disclosure would prejudice national security”. It would take a very brave court to determine “the public interest in disclosure outweighs the harm to protected interests”.

Martin Maitha

Mr. Maitha is an Advocate of the High Court of Kenya. He specialises in legal research and writing, and has a keen interest in corporate, commercial, media and ICT law.

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About Martin Maitha 16 Articles
Mr. Maitha is an Advocate of the High Court of Kenya. He specialises in legal research and writing, and has a keen interest in corporate, commercial, media and ICT law.