A legal analysis by Article 19

The process of developing a dedicated law on the right to freedom of information has been ongoing in Kenya for almost a decade. The Kenyan Government promulgated the first draft of the Freedom of Information Law in 2005. In 2007, a Freedom of Information Bill was introduced in the Kenyan Parliament as a private members Bill; it was rejected in the first reading. In 2008, the Government drafted the Freedom of Information Bill 2008; however, this Bill was never introduced in the Parliament. In the meantime, Kenya has undergone a constitutional referendum, and the new Constitution of Kenya (promulgated on 27 August 2010) proclaims the right to an access to information. The promulgation of the new Constitution gave a new impetus to the campaign for enactment of freedom of information legislation. The Draft Bill was thus proposed in view of Article 35 of the Constitution and aims to articulate in detail the scope and exercise of this fundamental right.

The Draft Bill will first be considered by the Constitutional Implementation Committee (CIC). Currently, the CIC has called for stakeholder input into the Draft Bill to inform its consideration and potential amendments. Following a public consultation the final Draft Bill will be forwarded to Parliament. The constitutional framework for implementation of laws does not specify a deadline for the adoption of this particular Bill. Neither the Government nor Parliament has approved a deadline for its enactment.

ARTICLE 19 considers the Draft Bill a positive step towards the effective protection of the right to freedom of information in Kenya. It sets out the principles of access to public information, determines the subjects of the law (both right holders and duty bearers) and regulates the procedure for seeking public information. The Draft Bill also establishes the Kenya Freedom of Information and Data Protection Commission and introduces an enforcement mechanism.

ARTICLE 19 welcomes a number of features of the Draft Bill, and our analysis highlights how this Draft could be further improved and brought in compliance with international legal standards in this area. With its adoption, Kenya would also join eight countries in Africa that have national Freedom of Information laws, namely: Angola, Ethiopia, Liberia, Nigeria, Niger, South Africa, Uganda and Zimbabwe.

ARTICLE 19’s analysis of the Draft Bill is based on international law and best practices in the field of the right to information, as summarised in two aforementioned ARTICLE 19 publications: ARTICLE 19 Principles and ARTICLE 19 Model Law. Both publications represent a broad international consensus on best practices regarding right to information legislation. They therefore provide a useful framework in which to discuss the features of access to information legislation.

This analysis consists of two parts. In the first part, we outline international principles on the right to freedom of information and the respective obligations that Kenya has when implementing domestic legislation in this area. Thereafter, we point to the problematic areas of the Draft Bill, which we discuss in detail, and then propose amendments.

INTERNATIONAL STANDARDS ON THE RIGHT TO FREEDOM OF EXPRESSION AND INFORMATION

The right to freedom of expression and freedom of information is widely held to be a “cornerstone” right, crucial both in its own regard and for the functioning of democracy. It is a condition for engagement in public governance and in debates on issues of public interest. Without freedom of information and transparency, the public will be unable to oversee public bodies and hold themaccountable for corruption or abuse of powers.

The right to freedom of expression and information is also important for the protection of other human rights. It helps reveal human rights violations and exercise other human rights. Finally, the exercise of the right to freedom of information is dependent on the creation and maintenance of public records and therefore indirectly contributes to government efficiency.

The right to freedom of information under international, regional and constitutional law

The right to freedom of information is an internationally recognised human right. The Universal Declaration of Human Rights (UDHR), adopted in 1948, enshrines the right to access information held by or under the control of a public body in Article 19, which states:

“Everyone has the right to freedom of opinion and expression; this right includes the right to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

While the UDHR is not directly binding on States, parts of it, including Article 19, are widely regarded as having acquired legal force as customary international law. Similarly, Article 19 of the International Covenant on Civil and Political Rights (ICCPR) enshrines the same right in terms similar to the UDHR. Both Article 19 of the UDHR and Article 19 of the ICCPR have been interpreted as imposing an obligation on States to enact freedom of information laws. The UN Human Rights Committee, the body established to supervise the implementation of the ICCPR, has long commented on the need for States to introduce freedom of information laws. Kenya is a party to both the UDHR and the ICCPR.

As a State Party to the African Union, Kenya is also bound by the freedom of information obligations imposed by the African Charter on Human and Peoples’ Rights (the Charter), and the Declaration of Principles on Freedom of Expression in Africa (the Declaration). The first is a legally binding treaty to which Kenya is a State party; the second is an interpretative Declaration on the content of the freedom of expression guarantee contained in the Charter, adopted by the African Commission on Human and Peoples’ Rights (the Commission). Article 9 of the Charter states:

1. Every individual shall have the right to receive information.

2. Every individual shall have the right to express and disseminate his opinions within the law.

Principle IV of the Declaration states:

1. Public bodies hold information not for themselves but as custodians of the public good and everyone has a right to access this information, subject only to clearly defined rules established by law.

2. The right to information shall be guaranteed by law in accordance with the following

principles:

• everyone has the right to access information held by public bodies;

• everyone has the right to access information held by private bodies which is necessary for the exercise or protection of any right;

• any refusal to disclose information shall be subject to appeal to an independent body and/or the courts;

• public bodies shall be required, even in the absence of a request, actively to  publish important information of significant public interest;

• no one shall be subject to any sanction for releasing in good faith information on wrongdoing, or that which would disclose a serious threat to health, safety or the environment save where the imposition of sanctions serves a legitimate interest and is necessary in a democratic society; and

• secrecy laws shall be amended as necessary to comply with freedom of information principles.

3. Everyone has the right to access and update or otherwise correct their personal information, whether it is held by public or by private bodies.

Further, the Commonwealth, of which Kenya is a member, has recognised the fundamental importance of freedom of information on a number of occasions. As far back as 1980, the Commonwealth Law Ministers declared in the Barbados Communiqué that, “public participation in the democratic and governmental process was at its most meaningful when citizens had adequate access to official information.”

Most recently, in September 2011, the Pan-African Conference on Access to Information adopted the African Platform on Access to Information (APAI), a regional declaration indicating support for right to information principles, drafted by nine African groups working on freedom of expression, access to information and the media, including ARTICLE 19. The APAI elaborates on the right to freedom of information, and sets out minimum standards for access to information at national level. This landmark regional declaration declares that the right to know is vital for good governance and a fundamental right of all people. The Declaration sets out 14 principles focusing on African-related issues which elaborate the right of access to information, include access to information by disadvantaged communities and cover issues related to health, education, aid transparency and corruption. The APAI provides guidance to countries for the enactment and implementation of access to information laws and makes requests to governments, international bodies and others on promoting the right of access to information, including formal recognition of 28 September as International Right to Information Day. The Declaration was also submitted to UNESCO and the African Union (AU) and other international bodies for adoption.

ARTICLE 19 also wishes to highlight that in 2010, the Africa Special Rapporteur on Freedom of Expression and Access to Information, in consultation with stakeholders, developed a Draft African Model Law for African Union Member States that includes model legal provisions based on international principles and best legislative practices to guide lawmakers in the development of access to information legislation.

Finally, the right to freedom of information is constitutionally guaranteed in Kenya. Article 35 of the 2010 Constitution states:

“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.

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

“The State shall publish and publicize any important information affecting the nation.”

The content of the right to freedom of information

A survey of international law and best practices shows that to be effective, freedom of information legislation should be based on a number of general principles. Most important is the principle of maximum openness: any information held by a public body should in principle be openly accessible, in recognition of the fact that public bodies hold information not for themselves but for the public good. Furthermore, access to information may be refused only in narrowly defined circumstances, when necessary to protect a legitimate interest. Finally, access procedures should be simple and easily accessible and persons who are refused access should have a means of challenging the refusal in court.

In his 2000 Annual Report to the UN Human Rights Commission, the UN Special Rapporteur endorsed ARTICLE 19’s overview of the state of international law on freedom of information as published in ARTICLE 19’s Principles and called on governments to revise their domestic laws to give effect to the right to freedom of information. He particularly directed States’ attention to nine areas of importance:

“[T]he Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles. Among the considerations of importance are:

• Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information; “information” includes all records held by a public body, regardless of the form in which it is stored;

• Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest, for example, operational information about how the public body functions and the content of any decision or policy affecting the public;

• As a minimum, the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information; the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government;

• A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing; a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest;

• All public bodies should be required to establish open, accessible internal systems for ensuring the public’s right to receive information; the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s);

• The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself;

• The law should establish a presumption that all meetings of governing bodies are open to the public;

• The law should require that other legislation be interpreted, as far as possible, in a manner consistent with its provisions; the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws should not be permitted to extend it;

• Individuals should be protected from any legal, administrative or employment-related sanctions for releasing information on wrongdoing, viz. the commission of a criminal offence or dishonesty, failure to comply with a legal obligation, a miscarriage of justice, corruption or dishonesty or serious failures in the administration of a public body.”

This constitutes strong and persuasive guidance to States on the content of freedom of information legislation.

Limitations on the right to freedom of information

Under international human rights standards, the exercise of the right to freedom of information is subject to certain restrictions. Individual requests for information from public authorities must be met unless the public body can demonstrate that the refusal falls within a limited scope of legitimate exceptions.

Under international law, freedom of information may be subject to restrictions when those restrictions meet the requirements stipulated in Article 19(3) of the ICCPR:

“The exercise of the rights [to freedom of expression and information] may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public

health or morals.”

The requirements of Article 19(3) translate into a three-part test, whereby a public body must disclose any information which it holds and is asked for, unless:

• The information concerns a legitimate, protected interest listed in the law;

• Disclosure threatens substantial harm to that interest; and

• The harm to the protected interest is greater than the public’s interest in having the information.

Each part of the three part test is further elaborated below.

Legitimate Protected Interest

Freedom of information laws must contain an exhaustive list of all legitimate interests on which a refusal of disclosure can be based. This list should be limited to matters such as law enforcement, the protection of personal information, national security, certain commercial interests, public or individual safety and protecting the effectiveness and integrity of government decision-making processes.

Exceptions should be narrowly drawn to avoid capturing information, the disclosure of which would not harm a legitimate interest. Furthermore, exceptions should be based on content, rather than on the type of document sought. In addition, exceptions should, where relevant, be time-limited.

For example, the justification for classifying information on the basis of national security may well disappear after a specific national security threat subsides.

Substantial Harm

Once it has been established that the information falls within the scope of a listed legitimate aim, it must be established that disclosure of the information would cause substantial harm to that legitimate aim. Therefore this part of the test holds that simply because the information falls within the scope of a listed legitimate interest, does not mean non-disclosure is justified. Otherwise a class exception would be created that would seriously undermine the free flow of information to the public. Instead, the public body must demonstrate that the disclosure of the information would cause substantial harm to the protected interest.

Harm Outweighs Public Interest Benefit in Disclosure

The third part of the test requires the information holder to consider whether, even if disclosure of information causes serious harm to a protected interest, there is nevertheless a wider public interest in disclosure. For instance, in relation to national security, disclosure of information exposing instances of bribery and corrupt practices may concurrently undermine defence interests. However, the disclosure may lead to eradicating corruption and therefore strengthen national security in the long-term. In such cases, information should be disclosed notwithstanding that it may cause harm in the short term.

If applied properly, the three part test would rule out all blanket exclusions and class exceptions as well as any provisions whose real aim may be to protect the government from harassment or exposure, to prevent the exposure of wrongdoing, to avoid the concealment of information from the public or to preclude entrenching a particular ideology.

ANALYSIS OF THE DRAFT BILL

Structure of the Draft Bill

The Draft Bill is divided into parts: it contains 53 provisions and is accompanied by two Schedules and a Memorandum of Objects and Reasons. Immediately after the preliminary provisions in Part I, which concern the title of the Bill, its date of entry into force and definitions, it deals with the establishment of the Freedom of Information and Data Protection Commission (the Information Commission). The next provisions deal with the right of access to information, the procedures for obtaining information, the right to appeal against refusals to provide information, etc.

ARTICLE 19 finds the structure of the Draft Bill confusing because it appears to give a primary focus to the institutional establishment and operation of the Information Commission. We note that typically, the first parts of freedom of information laws set out the right to freedom of information, its scope, the subject of the law (right holders and duty bearers), the procedure for exercise of the right and the grounds for refusals to disclose information. Logically, it is better to define the right and the procedures for its exercise before regulating the establishment of bodies in charge of enforcement and oversight of the implementation of the law.

Recommendations:

• The Bill should first define the right to freedom of information and the mechanism for exercise of this right before turning to the creation, mandate and powers of the Information Commission.

Commencement of the Draft Bill

Section 1 of the Draft Bill provides that “the minister” determines the dates when the law as a whole and its different provisions come into force. Under Section 2 of the Draft Bill, “the minister” in question means the minister for the time being responsible for matters relating to information.

ARTICLE 19 is concerned about the delegation of such important powers - as the entry of the legislation into force - to a member of the government. In accordance with the constitutional practices of the democratic world and the principle of separation of powers, Parliament should determine the date for entry of the law into force. This will guarantee that the operation of the law is not postponed by the government. The latter should be responsible for providing within the timeframe of the law the necessary institutional and financial assistance for its operation.

Recommendations:

• The Bill should specify the date when the Bill enters to force.

Principles of access to information

Section 26, paras 4–12 of the Draft Bill define the access to information principles as follows:

[a] person has a right to access information expeditiously and inexpensively (Section 26, para 4 of the Draft Bill); [t]his act shall be interpreted and applied on the basis of a duty to disclose (Section 26, para 6 of the Draft Bill);

[a] public body or private body shall accede to the authority of the commission in all matters relating to access of information (Section 26, para 7 of the Draft Bill); [a]ny refusal to disclose information shall be subject to appeal (Section 26, para 8 of the Draft Bill);

[a] public body or private body shall proactively publish information (Section 26, para 9 of the Draft Bill);

[a] person shall not be subject to any sanction for releasing information under this act in good faith (Section 26, para 10 of the Draft Bill); [t]his act applies to the exclusion of any law that prohibits the disclosure of information of a public body or a private body (Section 26, para 11 of the Draft Bill); [n]othing in this act shall limit or otherwise restrict any other legislative requirement for a public body, relevant private body or a private body to disclose information (Section 26, para 12 of the Draft Bill).

ARTICLE 19 welcomes the inclusion of these principles. They are in compliance with international standards and should guide the interpretation of the legal provisions and implementation of the law. However, we are concerned that the Draft Bill fails to underline their importance. At present the principles are part of Section 26, proclaiming the right to information. As the principles are laid down not in the beginning of the law and in a provision with 14 paragraphs, it is difficult to understand that these principles should guide the implementation of the entire law.

Recommendations:

• The freedom of information principles which are currently in Section 26 of the Draft Bill should be set out in the beginning of the Bill to highlight their importance for the interpretation and implementation of the entire law.

Right of access to information

Section 26 of the Draft Bill creates a legally enforceable right for every citizen to access all information held by or under the control of a public authority. In addition, citizens have a right to access information held by or under control of a private body if that information is necessary for the enforcement or protection of any right. The right of access is protected from the need to provide reasons for seeking access.

Under Section 2 of the Draft Bill, the term “public authority” includes the National Assembly, the Judiciary, all government ministries, departments or agencies at all levels of Government, any body established by the President or under Parliament, any body that receives any part of revenues directly from money provided by Parliament or a levy/fee/charge authorized by an enactment, any body subject to examination by the Controller and Auditor-General, statutory corporations within the meaning of the State Corporation Act, commissions of inquiry issued under the Commission of Inquiry Act, all local authorities established under the Local Government Act, any body carrying out statutory or public functions only to the extent of its statutory or public function (provided that the body is a public authority) or any other bodies designated by the Minister as a public authority for purposes of the Draft Bill.

In addition Section 26, para 14 of the Draft Bill provides that the right to information applies to private entities that: a) receive public resources and benefits, engage in public functions; or b) provide public services, particularly with respect to information relating to public resources, benefits, functions or services.

The definition of “information” in Section 2 includes any documentary material regardless of its physical form or characteristics, and any copy thereof, any record, correspondence, memorandum, books, plans, maps, drawing, films, microfiche, diagram, pictorial or graphic work, data, photograph, recording, audio or video tape, machine readable material, electronic form information, letters, reports, studies, records, minutes, statistics, directives, instructions, circulars, memoranda, practice notes, opinions, decisions in writing in the form of sound/visual recordings or computerized data, recorded and stored information on any device, subsequent material derived/stored from recorded information in any form and anything that is part or a copy, in any form of the above or is a combination of two or more of the above.

Section 26, para 13 of the Draft Bill sets out that the right of access to information includes: a) both a right to request and receive information and b) an obligation on the part of public bodies and officials to disseminate essential information that the public is entitled to know, including their core functions and key activities.

ARTICLE 19 welcomes a broad scope of the right of access to information, as set up by the abovementioned provisions of the Draft Bill. A wide range of information can be sought under the Draft Bill thanks to the broad definitions of “information” and “public authorities.” It is positive and in line with international standards that the duty to disclose information does not stem from public ownership of the subjects but from their public functions. In this regard, we welcome the right to seek information from private bodies.

At the same time ARTICLE 19 is greatly concerned that the Draft Bill grants rights under the Bill to Kenyan citizens only. The Draft Bill does not grant to foreigners, stateless persons or legal entities the right of access to public information. This provision is in conflict with international standards, which recognise that everyone regardless of citizenship or any other criteria has a right of access to public information. We advise that the law be brought into compliance with international standards regarding this matter.

Recommendations

• Everyone, not just citizens of Kenya, should be entitled to request access to public information under the Freedom of Information Bill.

Exemption to the right of access to information

Two provisions of the Draft Bill deal with exemptions of the right to access to information. Section 26, para 5 of the Draft Bill states that:

[a] person has a right to access to information … subject only to such limitations as

necessary for public interest. Section 27 of the Draft Bill regulates the exemptions in detail. Paragraph 1 of this section states that information may be withheld where a public authority is satisfied that disclosure of such information is “reasonably likely” to:

a) cause serious prejudice to the national security of Kenya,

b) impede the due process of law or endanger the safety or life of a person or endangered species,

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

d) cause serious prejudice to the legitimate commercial or financial interests of that authority or a third party from whom information was obtained,

e) cause serious prejudice to the ability of the Government to manage the economy of Kenya,

f) significantly undermine a public authority’s ability to give adequate and judicious consideration to a matter concerning which no final decision has been taken and which remains the subject of active consideration; or

g) damage a public authority’s position in any actual or contemplated legal proceedings by revealing the legal advice which it received in anticipation of or connection with such proceedings.

Section 27, para 4 of the Draft Bill provides that notwithstanding anything contained in subsection 1, a public authority shall disclose information where the public interest in disclosure outweighs the harm to protected interests. Section 27, para 5 of the Draft Bill sets out that in defining “public interest” regard has to be given to the need to:

a) promote accountability of public authorities to the public,

b) ensure that the expenditure of public funds is subject to effective oversight,

c) promote informed debate on issues of public interest relevant to this Act,

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

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

ARTICLE 19 notes that the interests justifying refusals to communicate information, set out in Section 27, para 1 of the Draft Bill, are in line with international standards. At the same time, this provision sets out the so called “harm test,” according to which the body deciding against the disclosure of the document has to prove that the disclosure would affect legitimate protected interests. The “harm test,” which is the first prong of the three-part test, outlined above in the section of this analysis relating to international standards, requires that the threat be real, not just hypothetical. We are concerned that the phrase “reasonably likely” in Section 27, para 1 is vague and therefore does not correctly present the harm test. We recommend its replacement with “real threat.”

We also consider that Section 27, para 4 of the Draft Bill fails to define correctly the public interest override principle, which is one of the fundamental features of freedom of information legislation. This principle concerns the cases of conflicts between a legitimate secrecy interest of a public body and the public interest in disclosure by the public body. It requires that in these cases authorities give preference to the public interest in disclosure, i.e. the latter should prevail over the secrecy interest of public bodies.

The principle of the public interest override is defined in view of the tendency of public officials to refuse to disclose information referring to legitimate secrecy interests. It requires that the public body refusing to provide information prove that the harm to its secrecy interest outweighs the harm to the public interest in disclosure. In contrast, the Draft Bill is silent with respect to the burden.

The principle states that a public body may not refuse to indicate whether or not it holds a record, or refuse to communicate information, unless the harm to the protected interest outweighs the public interest in disclosure.

Assumption that public bodies will protect the public interest in disclosure even if the latter is damaging to their own interest. We believe that such an assumption is unlikely to happen in reality. Therefore it is recommended that the Draft Bill place the burden of proof on public bodies to demonstrate that the harm to their interest outweighs the public interest in disclosure.

Finally, ARTICLE 19 is concerned that the Draft Bill does not provide for the severability of information. This is in conflict with international standards, which recognise that, even if the refusal to disclose some information might be justified, the information requester should be provided with access to the remaining part of the information, for which the secrecy interest is not justified. It is recommended that the Draft Bill include a severability clause.

Recommendations:

• The phrase “reasonably likely,” referring to the likelihood of causing harm to legitimate interests set out in Section 27, para 1 of the Draft Bill, should be replaced with “real threat” in order to conform to the “harm test” set out in international standards.

• Section 27, para 4 of the Draft Bill should be revised to state that, notwithstanding exemptions provided in the Act, a public authority must grant a request for access to information unless it can demonstrate that there is substantial harm to a legitimate interest and that harm outweighs the public interest in disclosure.

• The Draft Bill should include a provision setting out that, if a request for information relates to a record containing information which falls within the scope of an exception, any information in the record which is not subject to an exception shall, to the extent it may reasonably be severed from the rest of the information, be communicated to the requester.

Procedure for accessing information

The procedure for accessing information is provided for in Sections 29-34 of the Draft Bill. Applications for information should be made in English or Kiswahili by any medium  containing details and sufficient particulars that ensure officials understand what information is being requested. Oral applications may also be used and will be put into written form by the officer who receives the application. Applications can be also made in a local language if information requesters are unable to communicate in English or Kiswahili. A written notice of the receipt of an application should be given to the information requestor. Decisions on applications are to be made as soon as possible and in any event, within 15 working days from the date of receipt of the application. An exception of 48 hours is provided when the information requested concerns the life or liberty of the person. When an application is transferred to another public authority, the applicant should be informed thereof no later than 5 days from the date of receipt of the application.

Within 15 days after the receipt of the request, information requesters should be informed in writing about public bodies’ decisions to provide them with information. The notice should specify fees, method of payment, process of accessing the information and right of appeal.

Upon receipt of the requisite fee, the information should be provided to the applicant immediately. Information requested that does not exist in the language it is requested will be provided within a reasonable time in the language in which it has been applied for.

Section 31, para 3 of the Draft Bill provides that the failure of a public authority to make a decision on an application for access will be deemed a refusal, subject to internal review and appeal.

ARTICLE 19 considers that the procedure for accessing information is in compliance with international standards. It is positive that the Draft Bill takes the information requester’s language into consideration and includes a written notice about the particulars of the procedure. It is recommended that the Draft Bill specify the period for translation of information since the phrase “within a reasonable time” can be used to delay the provision of information.

Recommendations:

• The Draft Bill should provide that if the information does not exist in the language in which it is requested it should be translated into that language within six weeks.

Costs

Section 34 of the Draft Bill provides that no fee may be levied in relation to the submission of an application other than a reasonable fee not exceeding the actual costs of making copies of such information and if applicable, supplying them to the applicant. Furthermore, it provides that fees should not be so high as to defeat the objectives of the law. Public information officers may waive any fee when payment of the fee may cause financial hardship to the applicant or when the disclosure of the information is in the public interest.

This section is in compliance with international standards and ARTICLE 19 welcomes it. Costs should not hinder or deter persons seeking to enforce their rights under freedom of information laws.

Public information officers

The Draft Bill provides that information officers deal with requests for information. Section 2 of the Draft Bill defines “information officers” as “any officer of a public authority designated as such for purposes of the Draft Bill who in the first instance is the chief executive of the public authority, and any delegated officer in any other instance.”

ARTICLE 19 is concerned that the Draft Bill does not specify the procedure for designation or appointment of public information officers. A specifically designated public information officer dealing with access requests would greatly assist efforts towards a more effective implementation of the right to access information. Therefore, we recommend that the Draft Bill regulates the appointment of public information officers.

Recommendations:

• The Draft Bill should include a provision stating that within one month of entry of the Bill, any public authority is obligated to designate a public information officer to deal with requests for information and other issues specified in the Bill and adopt internal rules and procedures to ensure the implementation of the Bill.

• The Draft Bill should impose a duty on public authorities to ensure that the appointed information officers are adequately trained to perform their duties.

Correction of personal information

Section 35, para 1 of the Draft Bill provides that information held by a public authority that is “irrelevant” can be corrected at the request of an individual.

ARTICLE 19 considers that it is difficult to establish “irrelevant” personal information in public records. Therefore we recommend that “irrelevant” be deleted from this provision and replaced with “incorrect.”

Recommendations:

• Section 35 of the Draft Bill should be revised stating that everyone should be entitled to request deletion of incorrect information.

The Information Commission

Part 2 of the Draft Bill concerns the establishment and functions of the three-member Information Commission. The members (one chairman and two ordinary members) are to be appointed by the President. Section 11 of the Draft Bill deals with the procedure for appointment of the Chairperson and the Commission members. It provides that the President will convene a selection panel to select suitable candidates for appointment as Chairperson or member of the Commission. The selection panel shall consist of one person from each of the following bodies:

a) Office of the President

b) Office of the Prime Minister

c) Ministry responsible for matters relating to justice

d) Public Service Commission

e) Association of Professional Societies in East Africa

f) National Council for Persons with Disabilities

This panel shall invite applications from qualified persons, interview and shortlist at least 3 persons qualified for appointment as Chairperson and 5 persons qualified for appointment as members of the Commission. These names shall be forwarded to the President for nomination in consultation with the Prime Minister. These nominees will then be forwarded to the National Assembly who can approve or reject the nominations.  Should the nominations be rejected, the entire recruitment process begins again by the selection panel.

Section 13 of the Draft Bill recommends a six-year term for the Chairperson and members of the Commission, however, this term is not renewable.

Section 8 of the Draft Bill provides for the independence of the Commission by stating that it is subject only to the Constitution and the law, and is independent from the direction and control of any person or authority.

Section 10 of the Draft Bill outlines professional requirements for a Chairperson of the Commission. He/she should have 15 years of professional experience in the areas of human rights, law, data protection, transparency or public corporate governance. He/she must hold a degree and meet the Leadership and Integrity provisions of Chapter six of the Constitution of Kenya.

The Draft Bill requires that members of the Information Commission hold a degree, have 10 years experience in the same areas as provided for the position of Chairperson and have a distinguished career in their respective field.

Section 10, para 3 of the Draft Bill disqualifies anyone who is a member of parliament, county assembly, political party, local authority and/or an un-discharged bankrupt or has been removed from office for contravening the provisions of the Constitution or any other law.

ARTICLE 19 notes that the Draft Bill seeks to protect the independence of the Information Commission by preventing political influence through politically involved appointees. However, this process raises many concerns with regard to international standards:

• First, the public does not participate in the nomination process. Public participation is a guarantee that candidates are selected on the basis of their professional and personal qualities as opposed to their political affiliation. Furthermore, it is advisable that the law stimulates public participation because it promotes public awareness of the new regime.

• Second, it is problematic the President plays a key role in the selection and appointment of the candidates. ARTICLE 19’s Principles specifically state:

appointments should be made by representative bodies, such as an all party parliamentary committee, and the process should be open and allow for public input, for example regarding nominations. Individuals appointed to such a body should be required to meet strict standards of professionalism, independence and competence, and be subject to strict conflict of interest rules.

ARTICLE 19 recommends that the Parliament select the three candidates with a two-third majority of the votes cast. The president should have only a formal power to appoint the selected candidates.

In addition we note that the Draft Bill contains no requirement related to moral qualities of the candidates. In view of Chapter Six on Leadership and Integrity of the Constitution of Kenya, we recommend that the law require that candidates have not been convicted of a violent crime or a crime of dishonesty, either at the time of appointment or during their term in office.

Next, the professional standards required in Section 10 of the Draft Bill are unreasonably high in terms of years of experience. We recommend that the threshold be lowered to expand the range of suitable candidates applying for the positions of Chairperson and member to 10 and 5 years, respectively.

Section 13 of the Draft Bill restricts the tenure of office for Chairperson and members to 6 years. While 6 years is a good term length for the reasons stated above, there is no reason why the term should not be renewable. We propose that the tenure be extended to a maximum of two terms in office. This will create continuity and build expertise and experience of those in office should they be re-appointed. This will in turn promote the efficiency of the Information Commission as well as provide a good institutional memory to be passed down to successors.

Recommendations:

• The members of the Information Commission should be appointed by the President and confirmed by two thirds of the Parliament.

• The Draft Bill should require that members of the information commission have not been convicted of a violent crime or a crime of dishonesty, either at the time of appointment or during their term in office.

• The professional standards for eligibility of Chairperson or a member should be lowered to 10 and 5 years, respectively.

• Section 13 of the Draft Bill should be amended to allow for renewal of the term of office of the members of the Information Commission.

Removal of the Information Commissioner

Section 15 of the Draft Bill provides that a person may be removed from holding the office of Commissioner before the expiry of their term only for serious violations of the Constitution of Kenya (including provisions on leadership and integrity), gross misconduct, physical or mental incapacity to perform the functions of office, incompetence or bankruptcy. Additionally, a person desiring the removal of a member of the Commission must file a petition with the National Assembly setting out the alleged facts constituting grounds for removal. On consideration of the petition, the National Assembly shall forward the petition to the President who will either suspend the member while the proceeding is pending or appoint a tribunal to investigate the matter. The decision of the tribunal may be appealed before the Court of appeal.

ARTICLE 19 considers that the grounds outlined in Section 15, para 1 of the Draft Bill to be well drafted and commends the express appeal provision in Section 15, paras 5 and 7. However, we are concerned that again the Draft Bill delegates power to the President. Referring to our concerns set out in the previous section, we consider that the power of the President to remove information officers conflicts with the independence of the Information Commission. It is recommended that the removal of commissioners process be left to the Information Commission and National Assembly.

Recommendations:

• The Draft Bill should empower the National Assembly to appoint a tribunal to hear petitions for cases of removal of a member of the Information Commission.

Powers of the Information Commission

The functions of the Information Commission are provided in Section 5 of the Draft Bill. The Information Commission shall:

• investigate complaints;

• inspect public authorities and make appropriate recommendations to them;

• inform and educate the public on their rights under the Bill;

• recommend to public authorities effective measures to promote access to information under international treaties and conventions;

• ensure public authorities comply with their obligations under the Bill;

• hear and determine complaints and appeals;

• approve information dissemination procedures;

• ensure data protection as provided under the law relating to data protection; and

• perform any other functions necessary for the promotion of access to information.

Generally, the functions of the information commissions comply with international practice in that international standards relating to monitoring, reporting, recommendations for reform, publicizing the law and the rights of individuals under it and the hearing of complaints and appeals are met.

ARTICLE 19 recommends that the Information Commission be entrusted with training information officers. The Information Commission should be also given powers to refer to the appropriate authorities cases which reasonably disclose evidence of criminal offences under the law. These recommendations bring the Draft Bill in line with international standards in this area.

Recommendations:

• The Draft Bill should provide that the Information Commission is responsible for training public officials. The Information Commission should be granted powers to refer to the appropriate authorities cases which constitute criminal offences under the Bill.

Appeal Procedure

Internal Review of Decisions

Sections 36-39 of the Draft Bill provide for internal review of decisions of information officers. An applicant may request a review of a refusal to grant access to information, failure to grant all requested information, a purported but not actual grant of access, deference of provision of access, an imposition of a charge or the amount of a charge, issues relating to the remission of an application fee, denial of access to an unqualified person, refusal to amend a record of personal information and refusal to annotate a record of personal information. Decisions on review shall be given to the applicant in a notice that states adequate reasons for the decision.

ARTICLE 19 observes that internal review provisions provide for an efficient, clear and enforceable review mechanism. However, we note that Section 36 does not provide time limits for the determination of an application for review, which is a very important component of the procedure. We recommend a time limit of 5 days for the determination of an application for review. If left too long, the regime would be rendered useless.

Additionally, to strengthen the provisions of this part, we also recommend that Section 20, para 3 of the 2005 Draft Bill be retained in Section 39(b) of the current Draft. We observe, that 2005 Draft stated the following:

Where no decision is received within the time limits set by this Act, the complaint shall be deemed to have been rejected and an appeal may be lodged with the Information Commissioner. ARTICLE 19 notes that this was a positive provision and should be retained for the final Draft Bill.

Recommendations:

• Section 36, para 2 of the Draft Bill should be amended to include a time limit of 5 days on the determination of internal reviews.

• The Draft Bill should include a provision stating that where no decision is received within the time limits set by this Bill, the complaint shall be deemed to have been rejected and an appeal may be lodged with the Information Commissioner.

Commission Review Procedure

The Draft Bill sets out a procedure for appeal to the Commission. Section 39(b) states that an appeal may be lodged with the Information Commission against the outcome of an internal review within 30 days of such an outcome. A person wishing to lodge a complaint can do so orally or in writing to the authorized person in the Information Commission. Upon receipt of a complaint the Information Commission may call for information or a report regarding the complaint from the public authority or any other body within a timeframe specified by the Information Commission. If on receipt of the information the Information Commission is satisfied either that no further action is required or that the required action has been initiated by the public authority, the Information Commission shall take no further action and inform the complainant accordingly.

Section 23 of the Draft Bill gives the Information Commission power to issues summons or other orders requiring attendance of any person before the Information Commission and to compel production of relevant documents, to question any person regarding any subject-matter under investigation and to require any person to disclose any information within such person’s knowledge relevant to the investigation by the Information Commission.

When the Information Commission finds an infringement, it may order the release of any information withheld unlawfully, the payment of compensation or any other lawful remedy or redress. An order of the Commission may be filed in the High Court in the prescribed manner. A person or authority dissatisfied with an order made by the Information Commission may appeal to the High Court within 21 days from the date the order was made. If no appeal is filed, a person may apply ex-parte to the Information Commission for leave to enforce an order or decree.

A person is guilty of an offence and liable for a fine or imprisonment for a maximum of six months for failure to attend the Information Commission, refuse to be sworn or make affirmation, knowingly give false or misleading information or cause an obstruction/disturbance.

ARTICLE 19 considers that the provisions for the appeal to the Information Commission are comprehensive and in line with international standards. We recommend that the Draft Bill makes the decisions of the Information Commission binding to all parties and enforceable by the High Court. The appeal provision also needs to specify that the burden of proof of a denial of request is on the person or body that denied the request.

Recommendations:

• The Draft Bill should make the decisions of the Information Commission binding on all

parties and enforceable by the High Court.

• The appeal provision needs to clarify that the burden of proof of a denial of request is on the person or body that denied the request.

Appeals before courts

Section 23, para 3 of the Draft Bill provides that a person or authority may appeal to the High Court a decision of the Information Commission relating to the lawfulness of the withholding of information, the payment of compensation or any other lawful remedy or redress. The appeal should be made within 21 days from the date the order was made. ARTICLE 19 observes that in line with international standards the Draft Bill provides for appeals before courts. We welcome and support this proposal.

Measures to promote open government

Section 28 of the Draft Bill requires proactive disclosure of information by public authorities. In this section, a public authority shall no later than 12 months after the commencement of the law publish the particulars, functions and duties of the organization, powers and duties of employees, procedure followed in its decision-making process including channels of supervision and accountability, norms set for the discharge of its functions, any guidance used by it in relation to its dealing with the public or other bodies (including rules, regulations, manuals, records, etc.) and a guide sufficient to enable any person wishing to apply for information to identify the class of information held by it or the subjects to which they relate and the location of any indexes to be consulted as needed. Following this publication during each year is the obligation to publish statements updating the information contained in previous statements.

Section 28 of the Draft Bill obliges public authorities to publish facts that inform policies, decisions which affect the public, reasons for decisions taken by it and details of all contracts entered into, as well as to allow members of the public to attend meetings unless there are good reasons to the contrary.

ARTICLE 19 observers that the Draft Bill has a comprehensive, proactive disclosure regime and welcome these measures.

Public accountability of information officers and the Information Commission

Section 46 of the Draft Bill obliges public authorities to submit to the Information Commission annual reports with information on the number of requests for information received, the number of determinations made not to comply with requests for information, the number of applications for review and the result of such applications, the average number of days to process requests, the total amount of fees collected, the number of full-time staff devoted to processing requests for information and monies spent in processing such requests, the number of full-time staff of the public authority devoted to processing request for information and the total amount expended by the authority for processing such requests.

ARTICLE 19 notes that this section secures public accountability of information officers in line with international standards. However, it is recommended that the law give powers to the Information Commission to impose penalties on public and relevant private bodies who fail to comply with the annual reporting obligation.

Recommendations:

• The Draft Bill should give powers to the Information Commission to impose penalties on public authorities who fail to comply with the obligation to report annually on their activities.

Public education

Section 6, para 1(c) of the Draft Bill provides that one of the functions of the Information

Commission is to inform and educate the public as to their rights under this Act by means of a continuing programme of research, publication, lectures and symposia and by such other means as the commission may deem fit.

ARTICLE 19 recalls that international standards of the right to information provide that at the minimum, freedom of information legislation should make provision for public education and the dissemination of information regarding the right to access information, the scope of information which is available and the manner in which such rights may be exercised. We consider that the duty of the Information Commission to inform and educate the public as to their rights under the freedom of information act is in line with international standards. Information commissions in other countries have similar duties. However, the Information Commission will be unable to perform this duty unless it has adequate funding; therefore, we recommend that the law provide for adequate funding of the commission for training, education and information campaigns.

Recommendations:

• The Draft Bill should provide that adequate funding is granted to the Information Commission in view of its duties to provide education and information promoting the goals of the legislation.

Protection of whistleblowers

Section 47, para 1 of the Draft Bill creates protection for persons making disclosure of information obtained in confidence in the course of their activities. These persons shall not be penalized in relation to any employment, profession, voluntary work, contract, membership in an organization or any holding of an office as a result of making a disclosure of information if the disclosure is of public interest.

Section 47, para 2 of the Draft Bill provides that a disclosure which is made to the police or appropriate public authority should be deemed to be made in the public interest. The information for which the protection is given should relate to violations of the law, including human rights, mismanagement of funds, conflict of interest, corruption, abuse of public office and dangers of public health, safety and the environment. The protection provided under Article 47 includes protection against dismissal, discrimination, reprisal or other forms of adverse treatment or denial of appointment, promotion or advantage that otherwise would have been provided.

Section 47, para 3 of the Draft Bill states that a person shall make a disclosure where he or she has reasonable belief in the veracity of the information. Section 47(6) provides that in the proceedings for an offence for contravention of any statutory prohibition or restriction on the disclosure of information, it shall be a defence to show that, in the circumstances, the disclosure was in the public interest and that the accused person had, before making the disclosure, complied with the provisions of Section 47, para 3.

ARTICLE 19 considers that the provisions concerning disclosure of information in the public interest that has been obtained in confidence provide adequate protection to whistleblowers.

Offences and penalties

Section 50 of the Draft Bill provides for fines for up to five hundred thousand shillings or imprisonment for a term not exceeding two years for altering, defacing, blocking, erasing, destroying or concealing any record with the intention of preventing the disclosure by that authority of all or any part of the information provision to which the applicant would have been entitled.

ARTICLE 19 considers that Section 50 of the Draft Bill is in line with international standards. However, it is recommended that the law include sanctions for other violations relating to the legal regime and give powers to the Information Commissioners to impose these sanctions.

Recommendations:

• The Draft Bill should include sanctions for violations relating to the legal regime and give powers to the Information Commission to impose these sanctions.