Suppose you want to know the design and cost of that long-awaited road in your area. Or you want to see the government’s progress in keeping its election promises.
Kenyan law allows you to ask for – and get- this kind of information from officials. And if they don’t give you the information, they must offer you reasonable reasons why.
Article 35 of the constitution gives citizens the right to:
- information held by the state
- information held by another person and required to exercise or protect of any right or fundamental freedom
Every person also has the right to the correction or deletion of untrue or misleading information that affects them.
The state must also make public any important information that may affect the nation.
This includes “all relevant facts while formulating important policies”, a programme officer at the Katiba Institute, Ben Nyabira, told Africa Check. The Katiba Institute is a non-profit organisation that promotes knowledge of the constitution and its use in society.
Who can you ask for information?
Citizens may ask for information from a public or private entity, or another person. A “person”, according to the constitution, includes a company, association or other group of people, whether incorporated or unincorporated.
A private body may mean any non-state organisation that receives or uses public resources, provides public services or has exclusive contracts to exploit natural resources.
This body may also hold information of public interest – information needed, for example, to protect human rights or public health, or expose illegal actions.
What is the process?
The application must be made in writing, either in English or Kiswahili. If you can’t write because of disability or illiteracy, the receiving officer must write down your oral request and give you a copy.
The application is addressed to the information access officer of the organisation you want the information from.
Information officers can include chief executive officers, principal secretaries in ministries and managing directors of companies. They are also allowed to delegate the role.
The application can be hand-delivered, posted or emailed, Henry Maina, the regional director for Article 19 Eastern Africa, an organisation that works to safeguard freedom of expression and information, told Africa Check.
The organisation may ask you to fill in a form, but this should not slow down the process, he said.
What should be in the application?
You need to provide enough detail for the official to understand what you seek. But you don’t have to explain why you want the information, said Dr Jill Cottrell Ghai, a Katiba Institute director. Ghai was speaking at the launch of the Handbook on the Access to Information Act 2016 in February 2018.
The law adds that your right to access information can’t be affected by what the organisation believes are your reasons for requesting it.
You do have to tell private entities why you need the information, and your reason must relate to the protection of a key right or freedom, Ghai said.
No fees are charged for submitting a request, but an amount may be charged for making copies of the information, and supplying it to you.
What should happen after you submit a request?
After a request, the decision to provide the information must not take longer than 21 days. If the information relates to the life or freedom of a person, the information must be given no later than 48 hours after the request was received.
If the request involves a large amount of information or needs wide consultations, the officer can extend the decision by 14 days, but this can only be done once.
If the officer decides that the information is held by another public entity, they must transfer it to the second organisation within five days. They must also inform you of this step within seven days. But the information must still be provided within 21 days.
Can the state refuse to provide information?
If your request is approved, the state must write to you to tell you how it will provide the information.
But if the request is not approved, the information officer must tell you why, unless the reason itself can’t be revealed.
The constitution outlines some of these reasons. Information may be withheld if it could:
- undermine national security
- endanger the safety, health or life of someone
- lead to the unnecessary invasion of someone’s privacy or break professional confidentiality
- hurt the government’s ability to manage the economy
- impede the due process of law
Can you challenge this refusal?
The Commission for the Administration of Justice, also known as the Office of the Ombudsman, has oversight of the law. You may write to the commission to ask for a review of a decision by a public entity or private body, according to section 14 of the act.
You can also go to court, the Katiba Institute’s Ghai said.
“But of course, if it ever came to court, and they say ‘We don’t have to give that information’, and you say ‘You do have to give that information’, the court would then have to look into your reasons for wanting that information [and] if there was a valid objection on the part of the state,” she said.
A 2017 report released at the end of the first commissioners’ first term showed the commission handled 42 applications to review decisions after the information law came into force in 2016. Forty were against public bodies and two against private bodies.
Is the information law effective?
Experts said organisations weren’t implementing the law effectively.
At launch of the handbook, Article 19’s Henry Maina said he had asked different groups to request information from public officials. Many who applied at parliament were turned away.
Maina said his public profile as an activist meant he had a good response when he filed a request.
“You might arrive at a conclusion and assume that is what they do for all Kenyans, but it’s not true,” he said.
Many agencies also did not “fully and completely comply with access to information law requirements”, Maina said. This included not having a system to document and process requests, leading to backlogs.
The minister for information is yet to publish supporting regulations. But the delay should not be a reason for withholding information, experts said.
“This act is law. It is in force. The regulations are not required to make it effective,” said Ghai.
Our experience of Kenya’s access to information law
Africa Check lodged access to information requests with four Kenyan public offices to help with our research.
State department of interior. We requested information on all deaths listed in Kenya from 2012 to 2017, and their causes, from the principal secretary of the state department of interior.
Staff at the office signed for the request. Almost five weeks after the deadline set in law, we revisited the office. We were asked to file a second request, which we did on 14 June 2018.
But an email dated 25 June 2018 told us that the office “is not in a position to supply you with this information and you are advised to get in touch with the concerned ministry, department or agency to provide this information”. Yet the relevant agency is the department of civil registration services, which falls under the state department of interior.
Kenya Roads Board. Our request from the Kenya Roads Board for information on road construction in the country was officially received on 29 March 2018. Two weeks after the legal deadline, on 4 May 2018, the agency advised Africa Check to contact the state department of infrastructure for the information. They did not pass it on to the department, as required, nor meet any of the other requirements.
National Hospital Insurance Fund (NHIF). The NHIF officially received our request for information about its members – including how many contributing members and dependants were registered and how many registered members were active – on 29 March 2018.
On the 21-day deadline we checked back, but were told it had not been attended to. We were then asked to resubmit the request, which we did on 14 June 2018. We have not heard from the agency since.
After two follow-up visits, the department provided its caseload for the year, although it was not strictly the information requested. although it was not strictly the information requested. The information was dated 22 April 2018 but received on 22 May 2018.
Edited by Lee Mwiti
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