[open-government] Access to information a right in new Kenyan constitution

[Pranesh Prakash]

The provision states:

35. Access to information
(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.

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http://j.mp/98AtiE

New laws will allow access to information held by State
By Henry Maina

Posted Tuesday, August 24 2010 at 00:00

The operations of the Kenyan government in the past 47 years can be 
summarised as secretive and opaque.

However, this will soon be a thing of the past.

However, the promulgation of the New Constitution on Friday will 
immediately allow Kenyans to demand disclosure of any information held 
by the State as provided for in Article 35.

It states that every citizen has the right of access to information held 
by the State; and information held by another person and is required for 
the exercise or protection of any right or fundamental freedom.

The idea that this provision of the New Constitution comes into effect 
immediately makes in some way superfluous the pending Freedom of 
Information Bill.

This is because the right to access information as formulated in the New 
Constitution is a blanket right, it needs no legislation on how it is 
applied and there is no qualification on the type of information that 
can be accessed.

In fact, the promulgation of the New Constitution immediately renders 
most sections of the Official Secrets Act redundant and the often quoted 
secrecy oath nugatory.

This is because the Article 35 (3) states that the State shall publish 
and publicise any important information affecting the nation.

That Article 35 found its place in the New Constitution after over 10 
years of civil society organisations trying to advocate for the passage 
of an access to information law is a big win for democracy, good 
governance and rule of law.

To Wanjiku who has seen the quality of her life deteriorate because of 
bad governance and lack of accountability, the access to information 
provision could make a lot of difference.

Similarly, a legislator sitting in one of the parliamentary oversight 
committees, say the Parliamentary Accounts Committee, could request for 
comprehensive information on the expenses incurred by the State to 
resettle Internally Displaced Persons in the last two years.

To investigative journalists, the provision on access to information 
allows you to do your research and have an exclusive without having to 
look at your shoulders for fear of criminal charges like publication of 
false information or obtaining information illegally.

Thus Article 35 in the New Constitution is a win for all Kenyans 
regardless of status, profession, race, class and even level of education.

It obliges all public bodies, which is any body, established by or under 
the Constitution; established by statute; which forms part of any level 
or branch of government; owned, controlled or substantially financed by 
funds provided by government or the state; or carrying out a statutory 
or public function.

The writer is the director of ARTICLE 19 Eastern Africa.

-- 
Pranesh Prakash
Programme Manager
Centre for Internet and Society
W: http://cis-india.org | T: +91 80 40926283

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