The case: Okioma & 12 others v Kagwe, Cabinet Secretary for Health & 8 others (Petition 218 of 2020) [2023] KEHC 22245 (KLR) (Constitutional and Human Rights) (15 September 2023) (Judgment) 

KI’s Role: KI, along with several other NGOs and concerned citizens, were petitioners in this case. KI and the other petitioners advocated for the right of access to information under Article 35 and the Access to Information Act. 

Court: High Court Constitutional and Human Rights Division, Nairobi 

What it’s about: This case arose from the government’s response to the COVID-19 pandemic. In the early days of the pandemic, the State issued directives but did not always provide the information to support or explain them. Although KI recognised the need for the State to take decisive action, we believed that action must be accompanied by information. KI and other individuals and organisations requested information from the Cabinet Secretary for Health and other State organs. When the State failed to respond to those letters, we filed this Petition to address the violations of the right of access to information. We argued, first, that the government must proactively disclose information that is important to the public under Article 35(3) of the Constitution. And second, that the State’s failure to respond to the petitioners’ access to information requests violated Article 35(1)(a) of the Constitution. 

What happened: The High Court denied all the petitioners’ claims of violations of the right of access to information. It asserted that it did not have jurisdiction to hear the claims because the petitioners had not first requested that the Commission on Administrative Justice review their claims. 

Why it matters: This case addresses a recurring conflict between the Constitution’s treatment of fundamental rights and freedoms and a legal principle referred to as ‘exhaustion of administrative remedies’. The conflict requires a bit of explanation, so bear with us. First, let’s talk about jurisdiction. Jurisdiction refers to a court’s ability to hear a case. Article 23 of the Constitution says the High Court has original jurisdiction ‘to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights’. Original jurisdiction means that the High Court is where claims that a right or fundamental freedom has been violated are first heard. 

Article 23 makes one exception to the High Court’s original jurisdiction. It says that Parliament can take original jurisdiction away from the High Court, but it can only be given to subordinate courts, such as a tribunal or Magistrate Court. Article 23 indicates that the Constitution intended the original jurisdiction for hearing disputes about fundamental rights and freedoms to remain with the Judiciary. Since Parliament hasn’t passed a law transferring original jurisdiction over fundamental rights and freedoms to a tribunal, the High Court is the first stop if you raise claims that a fundamental right or freedom has been violated. 

Next, let’s talk about the doctrine of exhaustion of administrative remedies. In a nutshell, this doctrine says that if a law establishes a non-judicial, administrative remedy that people can use to resolve their conflicts, they must first use that remedy before going to court. The idea behind the doctrine of administrative remedies is that, for some kinds of disputes, the Courts are not the best place to start. Some disputes – particularly those that involve technical or specialised knowledge – can be resolved faster and more efficiently through an administrative process. In those circumstances, the administrative process may resolve the dispute before it gets to the courts. If the issue can’t be resolved, the courts will still be available, but only after the administrative remedy is used. 

Here, the Court decided that the Access to Information Act had established an administrative remedy for disputes about whether the government had adequately responded to a request for information. That remedy, the Court held, required that a person who thought that the government did not respond or responded incompletely must first ask the CAJ to resolve the dispute. It held that a person cannot go to the High Court to claim a violation of the right of access to information unless they first ask the CAJ to review the dispute. Because the petitioners did not first go to the CAJ, the High Court held that it did not have jurisdiction, could not hear the claims, and must dismiss the case. 

We disagree with the High Court’s decision. To be fair, the relationship between the CAJ’s review powers and the original jurisdiction of the High Court to hear violations of the right of access to information has led to inconsistent decisions. Some High Court cases have held that a petitioner alleging a violation of the right of access to information may go directly to the High Court; others have held, like here, that a petitioner must first go to the CAJ. We believe that the Constitution requires that a petitioner be able to go directly to the High Court. Here’s why: 

1. The Constitution limits who can hear a claim that a fundamental right or freedom, like the right of access to information, has been violated. As noted above, Article 23 indicates that original jurisdiction over violations of fundamental rights or freedoms remains with the Judiciary – either the High Court or a subordinate court. Parliament cannot pass a law requiring a claimant to go through an administrative remedy before raising a claim before the Judiciary. Such a law would take original jurisdiction away from the Judiciary in violation of Article 23. The CAJ, of course, is not part of the Judiciary; it is an independent commission. Any law requiring a claimant to first go to the CAJ before being allowed to file a petition in the High Court would violate Article 23.  

2. Although the Court is correct that the Access to Information Act gave the CAJ the ability to review some access to information disputes, it was wrong to conclude that the CAJ’s review was an administrative remedy that people must use before filing a constitutional claim at the High Court. An administrative remedy must involve a fair and transparent process that resembles a judicial process. The Access to Information Act does not include such a process. The intricacies of what counts as an administrative remedy can get highly technical. They would take us down a rabbit hole that only the most ardent administrative law nerd would enjoy. If you are one of those nerds, enter the warren through the Fair Administrative Action Act and get lost in the following cases: NGOs Co-ordination Board v EG & 4 others (Petition 16 of 2019) [2023] KESC 17 (KLR) paras 39-48; Albert Chaurembo Mumba & 7 others v Maurice Munyao & 148 others SC Pet 3 of 2016, [2019] eKLR paras 116-120; R v National Environmental Management Authority, CA No 84 of 2010, [2011] eKLR p 14.  

3. Finally, the Petition also claimed that the government had an affirmative duty to publish and publicise information about its COVID-19 response. The CAJ could not resolve whether the Respondents had violated this duty. Under Article 23, the High Court should have decided this claim. 

The upshot of these arguments is that a court, either the High Court or a tribunal, must hear violations of the right of access to information. The Access to Information Act cannot take away the Judiciary’s original jurisdiction. Instead, the Access to Information Act should be interpreted to give people a choice: they can ask the CAJ to resolve a dispute about access to information if they want, but they are not required to go to the CAJ before filing a claim with the High Court. 

What’s next: Katiba Institute has appealed the decision. Stay tuned to hear how the Court of Appeals resolves the issue.