THE ACCESS TO INFORMATION BILL 2013 DIGEST

(WRITTEN IN SEPTEMBER,2013) 

1.NAME OF THE BILL; THE ACCESS TO INFORMATION BILL, 2013 

2.HOUSE;   NATIONAL ASSEMBLY

3.LINKS;The link to the Bill is the Commission for the Implementation of the Constitution bill tracker link   http://www.cickenya.org/index.php/legislation/bill-tracker

4.STATUS OF BILL;Published. Awaiting parliamentary debate.

5.PURPOSE OF THE BILL; 
The Bill seeks to give effect to Article 35 of the Constitution which provides that;(1) Every citizen has the right of access to—

(a) information held by the State; and

(b) Information held by another person and required for the exercise or protection of any right or fundamental freedom.

(2) Every person has the right to the correction or deletion of untrue or misleading information that affects the person.

(3) The State shall publish and publicise any important information affecting the nation.

Section 4(1) of the Bill further illustrates this. 

Section 3 of the Bill provides for objectives of the Bill as to-

  (a)    Give effect to the right of access to information by citizens as provided under Article 35 of the Constitution;

  (b)   Provide a framework for the proactive disclosure by public entities and private bodies of information that they hold and the provision of information on request in line with constitutional principles;

  (c)    Provide framework to facilitate access to information held by public entities and private bodies in order to ensure the protection of any right conferred by the Constitution and any other law;

  (d)   Promote routine and systematic disclosure by public entities and private bodies based on the constitutional principles relating to accountability, transparency, public participation and access to information;

  (e)     Provide for the protection of persons who disclose information in the interest of the public and in good faith; and
   (f) Provide a framework to facilitate public education on the right to access information under this Act.   

6.BACKGROUND OF THE BILL; 
Prior to the enactment of the new Constitution there existed no law that guaranteed  right to information and attempts to introduce the right to information law through an Act of Parliament did not prove fruitful. The promulgation of the new Constitution of Kenya in 2010 therefore heralded a new chapter in the right to information in Kenya.

The right to freedom of speech has also generally been held to include the right to know or the right to information. Indeed Article 33 of the Constitution of Kenya provides in the relevant part that;

"(1) Every Person has the right to freedom of expression, which includes;

(a) Freedom to seek, receive or impart information or ideas..."

It is therefore arguable that the right to information in Kenya is governed by the provisions of both Article 35(1), and Article 33(1).  Further Article 232(1) (f) of the Constitution provides that the principles and values of public service include transparency, and provision to the public of timely and accurate information.

The statutes[1] that have some bearing on the right to access of information include the Official Secrets Act, the Statistics Act, 2006, and the Public Archives and Documentation Service Act.

By virtue of Article 2 of the Constitution of Kenya, Article 19 of the United Nations Universal Declaration on Human Rights, and Article 19 of the International Convention on Civil and Political Rights have applicability in Kenya. Further, Kenya is also a party[2] to the United Nations Convention against Corruption (UNCAC)[3], 2005. Chapter Two[4] of UNCAC is particularly important as regards the right to information[5].

Article 9 of the African Charter on Human and Peoples’ Rights also enshrines the right to information.

The Access to Information Bill, 2013 thus seeks to provide an avenue in which one can access information in compliance with national and international legislations.

7.HIGHLIGHTS OF THE BILL;

Disclosure of information by public entities

Section 5,which is subject to section 6 provides that a public entity shall-

•   Facilitate access to information  held by it;

•  Update, during the year commencing on first January next following the first publication of the information, and during each succeeding year, the information held by it;

•   Publish all relevant facts and information relating to policies formulated and decisions made by the public entity;

• Before initiating any project, or formulating any; policy, scheme, programme or law, publish or publicize to the public or to the persons likely to be affected by the project, policy, scheme. programme or law, the relevant facts available to it or to which it has reasonable access and which in its opinion should be known to the public in the interest of natural justice and the promotion of democracy;

• Provide to any person the reasons for any decision taken by it in relation to that person; 
• Upon executing a contract, publish on its website, or through any other suitable media;

The right to access to information as espoused in Article 35 (1);(3) of the Constitution shall be limited if disclosure of the information is likely to[6];-

(a)    Undermine national security;

(b)   Impede the due process of law or endanger the life of any person;

(c)    Involve the unwarranted  invasion of the privacy of a person other than the applicant or the person on whose behalf an application has, with proper authority, has been made;

(d)   Infringe on the commercial interests, including intellectual property rights, of that entity or third party holding the information;

(e)    Hinder the Government from managing the economy of Kenya;

(f)    Significantly undermine the ability of the public entity or private body to give adequate and judicious consideration to a matter in which no final decision has been taken ad which remains the subject of active consideration;

(g)    Prejudice the position of the public entity or private body in actual or contemplated legal proceedings; or

(h)   Infringe on professional privilege.

Information relating to national security includes;-

(a)    military strategy, doctrine, capability, capacity or deployment;

(b)   information on foreign governments which has an implication on national security;

(c)    intelligence activities, sources, capabilities, methods or cryptology;

(d)   information on foreign relations or foreign activities;

(e)    vulnerabilities or capabilities of systems, installations, infrastructure, projects, plans or protection services relating to national security.

Despite the above provisions, a public entity or private body may be required to disclose information where public interest outweighs the protected interests. In determining whether public interest outweighs the protected interests, the public entity or private shall have regard to the constitutional principles on the need to;-

(a)    promote accountability of public entities to the public;

(b)   ensure that the utilization of public funds is subject to effective oversight;

(c)    promote informed debate on issues of public;

(d)   keep the public adequately informed about the existence of any danger to public health or safety or to the environment; and

(e)    ensure that any statutory authority with regulatory responsibilities is adequately discharging its functions.

A person who discloses exempt information in contravention of this Act commits an offence and is liable, on conviction to a term not exceeding three years. However, it is not an offence if the exempt information is in public domain.

               Part III- Access to Information

Designation of information access officer

The chief executive officer[7] of a public entity shall be the information access officer of that entity and he may delegate the performance of his or her duties.

Application for access

Section 8 provides that person who intends to access information shall make an application in writing, either in English or Kiswahili providing enough details to the information access officer or any other officer to understand the information sought. One is allowed to make an oral application if illiterate or suffers a disability.

      Form of application

Section 9 provides that a public entity may prescribe the form of making an application to access information under section 8 and shall ensure there is no unreasonable delay in the processing of the application or cause undue burden on an applicant.

     Processing of application

The information access officer has twenty one days to determine application upon receipt and if the applicant receives no response, then the application shall be deemed rejected.[8]

   Application for access to information concerning the life or liberty of a person

Section 11 provides that the officer shall determine the application and inform the applicant of its decision to avail information sought within forty eight hours or if information is complex or of a large volume, within fifteen days form the date of receipt of application.

However, this may infringe on the right to privacy under Article 31(c) which states:

  Every person has the right to privacy, which includes the right not to have information relating to their family or private affairs unnecessarily required or revealed.

   Providing Access to information

Section 13 provides that where an information access officer makes a decision to provide the information sought in the application, the officer shall send to the applicant a written response within fifteen days from the date of his or her decision, advising-

(a)    that the application has been granted;

(b)   the form in which the information shall be availed including in an edited copy where applicable;

(c)    the fees, if any, or further fees to be paid for access, together with computation done to arrive at the fees payable;

(d)   the method of payment of such fees, if any;

(e)    the proposed process of accessing the information once the payment is made; and

(f)   that an appeal may  be made to the Commission in respect of the amount of fees to be paid or the form of access proposed to be granted.

         Fees

Section 14 provides that a public entity or private body can only charge a prescribed fee for the provision of information which shall not exceed the actual cost of making copies and supplying of the information where applicable.

This will ensure that any fees imposed to gain access to information are not high to deter potential applicants. In this situation the fees will be limited to cost recovery and no charges should be imposed on applications or for search time. This will act as a deterrence measure where bureaucrats deliberately drag their feet when collating information in order to increase fees.

              Part IV-Review of Decisions by the Commission

  Review of decisions by the Commission

Section 16 provides that an applicant may apply in writing to the  Commission for the review of any of the following decisions made by a public entity or private body  in relation to a request for access to information-

(a)   a decision refusing to grant access to the information applied for;

(b)    a decision granting access to information in redacted form;

(c)    A decision purporting to grant access, but not actually granting the access in accordance with an application;

(d)   A decision to defer the provision of access to the information;

(e)    A decision to impose a fee or the amount of fees payable;

(f)     A decision relating to remission of the prescribed fee;

(g)   A decision to grant access to information only to a specified person;

(h)   A decision refusing to correct, update or annotate a record of personal information in accordance with an application made under section 15.

The application shall be made within 30 days or such further period as the Commission may provide from the date on which the decision is notified to the applicant.

The Commission may on its own initiative or upon request by any person, review a decision by a public entity refusing to publish information that is required.

Part V-Conferment on the Commission of oversight and enforcement functions and powers

Functions of the Commission

The Commission[9]  shall be guided by the national  values and principles prescribed under the Constitution in performing its functions which include;-

(a)    Investigate, on its own initiative or upon a complaint made by any person or group of persons, the violation of the provisions of this Act;

  (b)      Request for and receive reports from public entities with respect to the implementation of this Act and of the law relating to data protection and ,based on the reports, assess and evaluate the use and disclosure of information and the protection  of persona data;

(c)   Develop and facilitate public education and awareness and develop programmes on the right of access to information and the right to protection of personal data;

(d)    Work with public entities  to promote the right of access to information and work with other regulatory bodies on the promotion of, and compliance with data protection measures under any written law;

(e)   Monitor compliance by State with international treaty obligations relating to the right to access information and the protection of personal data;

(f)    Hear and determine complaints and review decisions arising from the breach of the provisions of this Act;

(g)    Promote protection of data as provided for under this Act or the Constitution.

The decisions of the Commission shall be binding on the national and county governments.

Section 24 provides that a person who intends to lodge a complaint shall do so orally or in writing to the secretary or such other person as may be duly authorised by the Commission.

Powers of the Commission

Section 25 provides for the powers of the Commission as;-

(a)    Issue summons or other orders requiring the attendance of any person before the Commission and the production of any document or record relevant to any investigation by the Commission;

(b)   Question any person in respect of any subject matter under investigation before the Commission; and

(c)    Require any person to disclose any information within such person’s knowledge relevant to any investigation by the Commission.

The Commission may if satisfied that there has been a breach of the provisions of this Act, make an order for the release of any information withheld unlawfully; a recommendations for the payment of compensation; or any other lawful remedy or redress. A person who is dissatisfied with an order made by the Commission may appeal to the High Court within twenty-one days from the date the order was made.

Powers relating to investigation

Section 26 provides that the Commission may for the purposes of conduct investigation in relation to an inquiry-

   (a)    Utilize the services of any public officer or investigation agency of the Government; and

   (b)   Pay such expenses as may be incurred by the public officer or agency for the services rendered.

For the purpose of investigating any matter relating to an inquiry, a public servant or agency whose services are utilized may, subject to the direction and control of the Commission-

   (a)    Summon and enforce the attendance of any person for examination;

   (b)   Require the discovery and production of any information;

   (c)    Requisition any public records or copy thereof from any public officer; and

   (d)    Take statement under oath in relation to any investigation it is undertaking.

8.KEY PROVISIONS;OFFENCES AND PENALTIES

•   Disclosing exempt information (Section 6 (7))   ;  Imprisonment for a term not exceeding three years
  
• 
  
  Information access officer failing to respond to a request for information within prescribed time
  (Section 10 (4));Imprisonment for a term not exceeding three months or a fine not exceeding fifty thousand  shillings or to both
  
• Providing false information with the intent to cause injury to the reputation or loss or harm to another person (Section 18 (4));Imprisonment for a term not exceeding  three years
• Alteration, defacement, blocking, erasure, destruction or concealment of any record held by the public entity(Section 20 (3));Imprisonment for a term not exceeding two years or fine not exceeding five hundred thousand shillings or both.
  
• 
  
  Person failing to attend before the Commission in accordance with any summons; knowingly gives false or misleading statement/information; obstructs or causes a disturbance in the course of any proceedings.(Section 25 (5));Imprisonment for a term not exceeding six months or fine not exceeding three hundred thousand shillings or both

     9.CONCLUDING COMMENTS

Section 4 of the Bill needs to clearly define who a “citizen” is since it is likely to be declared unconstitutional in the event the Bill passes in its current form. This is due to the precedent set in the case of Famy Limited v Public Procurement Administrative Review Board & Another[10], which was the first decision[11], where the High Court defined the persons entitled to assert the right to information under Article 35 as:

1) The right to information is only enjoyable by Kenyan Citizens, and not foreign citizens; and

2) The right to information is enjoyable by natural Kenya Citizens and not

Kenyan juridical persons such as corporations, or associations.

As such, under the doctrine of precedent, other subordinate courts and tribunals shall be bound by that interpretation whereas the decision will be of persuasive nature to courts of concurrent jurisdiction.[12]

The interpretational approach taken by the High Court is likely to be a constraint to the development of the law relating to the right to access of information in Kenya. This is because until the ruling is either distinguished by a court of concurrent jurisdiction or overturned either by the Court of Appeal or the Supreme Court, it shall serve as the benchmark law on the right of access to information even with the passage of Access to Information Bill, 2012.

The implicit limitation in Article 35 is likely to be viewed as normal rather than an exception and this will have serious ramifications on the manner that the state or state organs are held accountable both by Kenyan citizens and foreign nationals who may have justification for seeking information from the state or its organs despite other provisions under the Bill of Rights such as Articles 13; 19 (3); 20(3); 20(4); 27; 33.

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[1] See Michael Murungi, "Kenya Considers Freedom of Information Law", 10th Sept. 2007, Kenyalawblog, available at http://kenyalaw.blogspot.com/2007/09/kenya-considers-freedom-of-information.html. For a brief discussion of some of the Statutes

[2] Kenya was among the first countries to sign and ratify the Convention on 9th December 2003. For details see "UNCAC Signature and Ratification Status as at 12th March 2012", available at http://www.unodc.org/unodc/en/treaties/CAC/signatories.html

[3] Available at http://www.unodc.org/documents/treaties/UNCAC/Publications/Convention/08-50026_E.pdf

[4] See Article 5(1), Article 9(1) on "public procurement", Article 10 on "Public Reporting",  Article 12(2)(c), Article 13(1)(b) &(d)

[5] See Khaseke Georgiadis (2006), International Legal framework for Fighting Corruption:  A critical Analysis of the UN Convention against Corruption in the Kenyan Perspective, LLB Dissertation, Moi University., for a general exposition on the Convention.

[6] Section 6,The Access to Information Bill, 2013

[7] Ibid., Section 7

[8] Ibid., Section 10

[9] Ibid., Section 23

[10] High Court Petition No. 43 of 2012

[11] There have been two other reported decisions on Article 35 such as; Kenya Society for the Mentally Handicapped (KSMF) v the Attorney General & 4 others, (Nairobi) Petition No. 155A of 2011, and Consumer Federation of Kenya (COFEK) v Kenya Revenue Authority & 2 Others (Nairobi) Petition No. 111 of 2012. The Court held in the two cases that enforcement of Article 35 can only a rise after a request for information has been made and the request denied.

[12] See Khaseke Makadia Georgiadis, “The Emerging Jurisprudence on the Right to Information in Kenya”, available at http://www.kenyalaw.org/klr/index.php?id=1150 accessed on 15^th September 2013