Even as Kenya marked International Day for Universal Access to Information last month, there is a need to accelerate passing policy regulations that guide the implementation of the Access to Information Act 2016.
The full realisation of the right of access to information depends on the issuance of regulations, by the ICT Cabinet Secretary as required under Section 25 of the Act.
Without these regulations in place, there is a lack of clarity on how information can and should be requested, the format in which the responsible authorities should provide it, as well as remedies in the event of non-compliance, among other things.
Since 2018, there has been an ongoing initiative to develop the Access to Information regulations through a collaborative effort between the Commission on Administrative Justice, the ICT ministry, the National Law Reform Commission, and ARTICLE 19.
Almost five years after the enactment of the Act in June 2021, the Commission on Administrative Justice published the regulations and sought comments as part of the public participation process.
As Kenya turns the corner on Covid-19 daily confirmed cases and death rates, the right to information remains key to enabling broader access to data, information and knowledge, and empowering citizens in their efforts to overcome the pandemic.
Enacted on September 21, 2016, the Access to Information Act gave life to Article 35 of the Constitution, which guarantees every Kenyan the right to seek, access and obtain information from public and private institutions acting in a public nature.
At the county level, Section 87 of the County Government Act, 2012 recognizes that timely access to information is one of the main principles influencing citizen participation in county government management.
Section 95 and 96 equally have explicit provisions on ATI.
Advocacy on access to information in Kenya has always been a multi-stakeholder effort with civil society being at the forefront.
Civil society has partnered with CAJ to create awareness and train public officers, particularly in the counties, on their roles in the implementation of the ATI Act.
The commission, the Kenya School of Government, the Local Development Research Institute and ARTICLE 19 worked together to develop an “Access to Information in the Public Service” curriculum.
Access to information at the county level has been a work in progress.
For instance, last year, Elgeyo Marakwet was the only county to publish all seven of its budget documents as required by Kenya's Public Finance Management Act of 2012.
Embu, Kisumu, Bomet, Kwale and Kiambu counties have passed the model law on Access to Information.
In 2018, President Uhuru Kenyatta issued an Executive Order directing all public institutions to disclose and publish public procurement information and manage them through a centralized electronic platform.
Makueni was the first county to set up an open contracting portal for sharing information about each of the procurement processes.
Kenya joined the Open Government Partnership in 2011 and launched its Fourth National Action Plan in 2021, which includes a commitment to advance the right to access information.
SIRIKALI
Despite these initiatives to enhance transparency and fulfil the right to information, execution has been slow and allegations of opaqueness stemming from a culture of secrecy remain widespread.
Various state and public entities have failed to provide timely and accurate information during the Covid-19 health pandemic, especially on the curfew, mandatory quarantine and support provided to health workers.
Despite multiple information requests, the government has continuously failed to disclose information relating to the Sh450 billion SGR contract.
Protection for whistleblowers is also a fundamental principle of Access to Information but Kenya has a history of failing to protect them. This is evident by the recent case of Spencer Sankale in the Mara Heist and the grisly murder of Jennifer Wambua, who was reportedly a key state witness in a corruption case.
The lack of overarching comprehensive legislation to protect whistleblowers has not only left them vulnerable to retaliation but also exacerbated the culture of silence and secrecy in public institutions, allowing corruption and abuse of office to thrive.
While a lot of emphasis has been placed on capacity building and awareness creation for public officials, citizens remain unaware of their rights of access to information.
Much more needs to be done, including passing the policy regulations that guide the implementation of the access to information frameworks.
Sarah Wesonga is Programme Officer, ARTICLE 19 Eastern Africa
