From a stalled defilement case in Samburu to delayed projects in Nairobi and Nakuru, citizens are using Kenya’s Access to Information law to demand answers, challenge official inaction and push for government action.

A request for information over a stalled defilement case involving a 15-year-old girl in Samburu has grown into a wider story of how citizens are using Kenya’s Access to Information law to challenge official inaction and demand accountability.

From the case, which is now awaiting a court ruling, to stalled public projects and long-standing community grievances in Nairobi and Nakuru, human rights defenders and community groups are increasingly turning to the law to compel public institutions to provide answers and take action.

According to Mrs Janet Kabugi, a human rights defender and member of the Samburu Women Empowerment Programme, the minor was defiled by a person known to her family on May 23 last year after her mother had travelled away from home. “When she came back, she learnt what had happened and confronted the man over the phone, obtained his confession and reported the matter to the police under OB number 32/25/05/25, but the matter stalled,” Mrs Kabugi recalls.

A month later, a group of like-minded human rights defenders concerned about the developments drafted an Access to Information (ATI) letter to the Office of the Director of Public Prosecutions, seeking disclosure of information on the status of the case pursuant to Article 35 of the Constitution of Kenya and the Access to Information Act No. 31 of 2016.

The provisions guarantee every citizen the right to access information held by the State and public agencies. Among the particulars sought by the team were a written explanation for the closure of the case despite the existence of a full medical report and a clear audio recording allegedly containing the suspect’s confession; clarification on why no action had been taken following the mother’s second request for the case to be reopened; and an explanation for the delays in the process and the apparent inaction at the time.

“Given the serious nature of this case and the widespread concern it has raised in the community, and having noted that it is a month since this matter happened. We urge your office to treat this matter with the urgency and transparency it deserves and provide us with comprehensive written feedback within 24 hours of receiving this letter,” the ATI, signed by multiple Samburu organisations, added.

Mrs Kabugi recalls that the matter generated significant interest, was debated on social media and in Parliament, before a new file was reopened and the matter proceeded to court.

“This was not without some challenges; the drafters of the ATI were leaked and at some point, hospital records that were to serve as evidence in the case were targeted during a hospital break-in. Despite all that, the matter proceeded in court and is set to come for ruling on August 27,” she says.

Mrs Kabugi and her fellow human rights defenders from Samburu applied lessons they had learnt during a recently concluded three-year Katiba Institute project dubbed ‘Empowering State Institutions and Citizens to Utilise Access to Information for the Promotion of Human Rights and Good Governance’.

The project sought to support proactive disclosure of public information by relevant government bodies, enhance responsiveness to opportunities for engagement with government by community members, and promote better responses by relevant institutions to violations of fundamental freedoms.

Over the past three years, communities in Nairobi, Samburu and Nakuru counties, as well as respective county government officials, have received training on Access to Information and Public Interest Litigation, including the limitations and liberties the law accords public officials when sharing information with the public.

In 2024, Nakuru County’s ATI champions came together and wrote a letter seeking information on the unfinished construction of a dormitory at St Mary Girls Primary School, a day and boarding school whose construction had stalled for years despite receiving multiple funding allocations.

The letter was first submitted to the County Director of the Ministry of Education in Nakuru County, but the drafters received verbal feedback that the information they sought was ‘threatening’ to the school and the Ministry of Education.

“We re-did the ATI again to them with the aim of ensuring that it was received and it was successful. After 21 days as stipulated in the ATI Act 2016, there was no formal communication received. We sent a reminder letter, issuing seven days to the Ministry of Education on the previous ATI. The 7 days, plus another 7 days, elapsed without further communication of the information requested. The next step that we took was to write a letter to the Commissioner on Administrative Justice (CAJ)/Ombudsman, the Regional Office in Eldoret, to assist on the matter,” recalls Mr Hannington Omollo, one of the ATI champions.

CAJ acknowledged their letter and wrote an ATI letter to the Chief Executive Officer in charge of Education, referring to the copy that the ATI champions had issued earlier while also issuing a 21-day notice for the information to be shared. It was after this that the information they sought was shared through the CAJ. Since then, progress has been made towards completing the facility.

In Nairobi, a similar ATI was drafted protesting the long-standing dumping of garbage on Salim-Muthiora Road in Dagoretti, whose construction had also been delayed for years despite multiple funding allocations. A women’s group wrote an ATI letter to the concerned authorities and, despite the matter taking some time to be acted upon, the garbage has since been cleared, and construction of the road is now underway.

A similar approach led to the protection of stadium land in Kawangware that had for years been ‘grabbed’. Today, the committee managing the stadium is led by an ATI champion and beneficiary of the Katiba Institute’s project. Beyond members of the public, the project has also led to changes in the manner in which county officers respond to citizens’ demands for information.

In Nairobi County, a Public Participation Bill was passed establishing a civic education unit to ensure that citizens are aware of certain basic provisions of the ATI law. The county also has a digital public participation portal dubbed Sema Nai, which will share information that residents need to know, including details of projects, as part of efforts to improve access to information.

In Nakuru County, the CEC in charge of Public Service Training and Devolution, Mr Ambrose Ngare Ogeto, said that for the first time since devolution, the county was able to secure an allocation for public participation. “The function of ATI is something we must strive to rely on; we do not have an option. If there is anyone who wants to limit ATI, that person is living in the past. Lack of information is painful to humanity,” the Executive Officer said.

Mr Mohamed Musa, a member of a Samburu County-based Community Based Organisation, noted that before the training, everything in the region revolved around elders. “Out of 14 ATIs submitted in the county during the three years, four were responded to, and two became court cases whose ruling is near,” he said. The situation is now changing following the emergence of ATI champions in the county, who also double up as human rights champions. “Previously, it was hard to question the county officials on anything, but that has since changed,” Mrs Kabugi added.

The county government, on its part, introduced a Department of Public Participation that publishes documents such as budgetary proposals and bills requiring community input 14 days before a public participation exercise, allowing residents enough time to review and interact with the documents.

During this 14-day period, county officials meet community groups to clarify issues that are not understood, as part of efforts to proactively ensure access to information. Despite the notable progress in ATI across the three counties, the trainees highlighted the need for the skills to be extended to all public officials and Kenyans as a way of strengthening transparency and accountability.

Patriciah Joseph, the Programmes Manager at Katiba Institute, however, reminded public officials to always consider the audience they are targeting when providing information. “Think about the audience; will they be able to understand it? This can be done through translation to, e.g. Swahili, simplification of the content because, as the County, you want to be understood. In other instances, the persons requesting the information can seek clarification,” she urged.

She also called on county governments to create systems that allow for transparency and the sharing of information within 48 hours if life is at stake or someone’s liberty is in danger, or within the usual 21 days stipulated by law. “Access to information should be the tool we use as an enabler to democracy,” Mr Leonard Githae, the Deputy Director, MIDRIFT added.

This article was first published by Eastleigh Voice

Image: Katiba Institute