The right to information is a fundamental freedom guaranteed in the Constitution of Kenya under Article 35, which was given its breathe of life with the enactment of the Access to Information Act 2016.
The law was moved by former Nyeri Woman Representative Priscillah Nyokabi, currently a commissioner with the Gender Commission.
“”Access to information helps in running away from white elephants. We are in a country where we have many half-finished projects like hospitals, schools, roads and markets and I wonder how a half-finished market or road helps anybody,” said Nyokabi in parliament when moving the private member’s Access to Information Act.
“For is to use our resources well, economically and optimally, we need access to information.”
Katiba Institute, a Non-Governmental Organisation that advocates for the implementation and realization of the constitution and its values, champions for the media to use the law as a way of enhancing democratic principles in Kenya.
“The media a critical oversight role on behalf of the public and therefore it is imperative for them to have a deep understanding of the Access to information law,” Christine Nkonge, Executive Director at Katiba Institute told journalists attending a three-day workshop in Machakos.
“Journalists can assist the country to attain a mature democracy through enhanced good governance, accountability and accountability in public Andy private entities.”
Themed “Journalists training on use of the Access to information law for investigative journalism to promote good governance and human rights”, the workshop organized by KI and the Media Council of Kenya seeks to empower journalists with skills on the use of ATI law to navigate through challenges that hinder reporting on matters of public interest.
Kurunzi News breaks down the ATI Act and answers seven important questions to help understand important provisions of the law:
1. What is ATI Act and through which institution of government is it implemented
The right to ATI is the right to get access information held by public and, in some circumstances, private entities. The Act provides how citizenships may seek and obtain information, unless it is protected from public exposure by one of nine exemptions under the Act.
All public (and private where there is public interest) are bound by this law but the Commission on Administrative Justice oversees the working of the Act and its enforcement.
2. Who has the right to access information
Every Kenyan citizen has the right to access information. Citizen here also includes private bodies like companies which have Kenyans as majority shareholders.
3. What is the ATI Act designed to do and who needs to disclose information
The Act is designed to give effect to Article 35 of the constitution by providing a framework for proactive disclosure and facilitate access by both public and private entities. It is also meant to promote routine and systematic disclosure based on the constitutional principles under Article 10, protect whistle blowers and provide a framework for public education on ATI.
Public entities are required to disclose information without the need for the applicant to give reasons for seeking the information requested, while private entities are only required to do so if the information is required to protect a fundamental right or have significant public interest because they receive public money or perform public functions.
4. How should I start the process of getting information
It is advisable that one tries checking whether the entity holding information has already published the information on their website so or through other platforms including the media because they are not obliged to supply information to an individual information it isn’t already in the public domain or can be accessed through other means. It is only after failure to get hold of the information that one should then write to the entity seeking the information.
Under the Act, public and private entities are required to make available guides to enable the public know what information they hold.
5. What if I do not know which entity has the information
This is no cause for alarm because if a request is made to a body that doesn’t not have the information sought, then that body should transfer such request to the appropriate organisation and inform the applicant. It isn’t also advised that one seeks help from the Ombudsman’s office in cases where one is not sure of which body holds the information required.
6. Is there a special format for making a request and does one need to say why they want information
The law requires that public entities prescribe a form for request for information but Ann application should not be turned down on premise that it is not made on a prescribed form.
On the question of disclosure of why the information I sent being sought, there is no requirement and a public officer asks an applicant to give a reason why the name they are not under obligation to respond. Should information sought be denied on this account, then one should take the right to report the matter to CAJ for intervention.
7. Are there any application fees and how long does it take for information to be shared
No fees are applicable for an ATI request, especially if the information sought does not require making of copies or reproduction. However, if there are copies that need to be made then the cost of such reproduction would be borne by the applicant.
There seems to be a contradiction in the Act, saying it is 21 days and another providing 15 day starts but whatever the case, the maximum period should be 21. Not hearing within that period may as well mean the request has been rejected and further intervention from the CAJ woulda be necessary.
Often, scribes have encountered obstacles to information on facet scheme where national security interests have been cited as premise of public or private entities denying access to information.
Henry Maina, a member of the MCK Complaints Commission said: “Local journalists can use the law to come with explosive investigative stories.”