KATIBA: Understanding the Access to Information law
After a 15-year struggle for an access to information legislation in Kenya, that law was, to the delight of many, finally enacted in August 2016.
Katiba Institute, with some civil society partners and public agencies, has developed a handbook to simplify that Act. Here the plan is to share some of the insights into the access to information process, and readers, who wish to pursue the topic further may download the full Handbook, or even ask for a paper copy.
While the Act has been used by agencies that want to build on the information — or the refusal to supply information — to criticise government action or inactions, the right of access to information is not just about politics and going to court. Ordinary citizens, who want to understand how public money is being spent, and why, or even people who have private problems that may be helped by obtaining information held by others, may find it useful.
While this handbook alone won’t make you an expert on access to information, it will provide you with the basic information you need as a citizen, a public officer or an employee in a private entity about access to information. Access to information will help you as citizen to participate effectively in governance issues, and protect your rights among other benefits.
THE BAD OLD DAYS
Many Kenyans will remember when the government was called ‘Siri-kali’ meaning ‘top secret’. The people in government leadership positions, and even citizens, understood this to mean government operations were a closed book and that only its officials were entitled to know what was going on. This culture of secrecy nurtured lack of accountability and transparency — which encouraged lack of the rule of law (paving way for the rule of men), corruption, and impunity, among other governance challenges. Interestingly, however, as Kenyans talked of ‘siri-kali’, the leaders also told them that the people are the government. This meant the people should not blame their leaders for the governance problems they were facing: That the people had the power to change their status since they were the government.
THE NEW CONSTITUTION
The people’s power to determine what the government does can only be effectively exercised in an open system of government, where the people get access to information and those in leadership positions consult and listen to the people. The people, therefore, knew they had the power to determine how the government was run, but they did not have the means to do that, largely because of the secretive system of government.
To solve this problem, Kenyans resolved to have their right to access information guaranteed in the Constitution. Article 35 guarantees citizens access to information held by the State and sometimes private bodies. The Access to Information Act, 2016, was enacted to give full effect to that right.
The first section of the handbook focusses on what the right of access to information is; why, how and who has the right; who must disclose information and how; what is that information that should be disclosed and what the Commission on Administrative Justice is. In brief, every citizen (and any institution such as a company that is controlled by Kenyans) has a right to access information held by a public entity: Any sort of information in their possession. It might be letters on file, emails, videos, computer records and so on. The information can be held by any public agency at national or county level, including government departments, police, military, boards, and authorities of all sorts. You can also ask for information held by a private body if it is necessary for you to protect your rights. You must explain why you want such information.
In fact, the Act says, generally, public bodies ought to make available information that is important to the public, including information about contracts that the body signs, and about plans for new policies.
The main part of the handbook discusses the process of accessing information. It explains how to start the process, how to find out who has the information you need. It explains that you do not need any special format, to explain why you need the information, and that you do not need to pay a fee for asking — though sometimes you might have to pay costs of providing the information. It explains the timeline for providing information and what happens when that information is very urgent.
You might be thinking you can’t imagine government, or even private organisations, would tell you everything you ask — and you would be right. There is a list of reasons why information may be refused. Most unsurprising are military and intelligence matters, and Cabinet deliberations. Other reasons are because disclosure might endanger life, or be unwanted infringement of privacy, harm a company’s commercial interests, interfere with fair trial, or substantially hinder government’s management of the economy.
But what the institution holding the information says is not necessarily the last word on disclosure. The Commission on Administrative Justice or a court might decide that disclosure would not have the consequences the body with the information claims. And a court might decide there is a public interest in the information being disclosed that overrides the refusal to disclose the information even if there is some apparently valid reason for refusing. Overriding public interest, the Act says, might include promoting accountability or informed public debate, or keeping the public informed about risks to public health or the environment.
The Handbook also gives guidance on taking complaints about refusal to give information to the CAJ or the courts. The courts have said a person cannot go straight to court and say, “I want information”: They must have asked the body holding the information first and been refused (or not got an answer within reasonable time). This Handbook is designed to make the process of applying easier.
OTHER INFORMATION ISSUES
The last section discusses other issues relating to access to information. One is “whistle-blowers”. The Act intends to protect people who give information to authorities — such as the police, human rights groups, the Ethics and Anti-Corruption Commission and the KRA. Often, a whistle-blower is an employee or an ex-employee. If the disclosure is justified, the Act says a whistle-blower must not be victimised (by, for example, being dismissed).
Another aspect of the Act is that it provides a procedure for personal information held by some institution, but is inaccurate, to be corrected. Maybe the police have a record that you have a conviction, or some public institution has a wrong date for your birth (which might lead to your having to retire early). You can apply to have a note correcting the information added to the record.
The Handbook also tells the story of a few important cases in which information has been sought to help explain why this is important. One recent case involved asking how much money was spent during the election campaign period by the President’s Delivery Unit, essentially advertising the government’s achievements (the information was not forthcoming, but the court has said it should be provided).
Finally, the Handbook suggests a couple of ways, one more formal than the other, to ask for information.
Katiba Institute and its partners hope the Handbook will be a useful resource to all persons in accessing information held by the State or by other relevant entities. Also, that the access to information and the duty to disclose information, including proactively, will help to promote open and good governance and the respect for people’s rights and to end the culture of ‘siri-kali’ in Kenya.
The handbook can be accessed from Katiba Institute’s website at: http://www.katibainstitute.org/access-to-information-handbook/
The authors are respectively a Programme Officer (a primary author of the Handbook) and a Director at the Katiba Institute
By NYABIRA BEN CHRISTOPHER and JILL COTTRELL GHAI