STUDENTS’ FORUM ON ACCESS TO INFORMATION

STUDENTS’ FORUM ON ACCESS TO INFORMATION PRESENTATION ON FREEDOM OF INFORMATION BILL BY SHIHUNDU GEORGE

INTRODUCTION • Access to information is a critical aspect of governance in every society in that it enhances awareness • Freedom of information is one of the fundamental rights and entitlements of the individual without which no government will be transparent, accountable and democratic • Societies can only progress when citizens have access to vital information about their state of being in a nation which creates shared knowledge

MODEL FOI • It seeks to promote maximum disclosure of information in the public interest, to guarantee the right of everyone to access information, and to provide for effective mechanisms to secure that right : FOI act was first passed in 1766 by Swedish parliament.

ORGANIZATION • It is divided into nine sections notably :definitions and purpose :the right to access information held by public bodies :measures to promote openness-every public body shall appoint an information officer and ensure that members of the public have easy access to relevant information concerning the information officer including his or her name, function and contact details :exceptions :the information commissioner :enforcement by the commissioner

Cont, :whistle blowers-no one may be subject to any legal, administrative or employment-related sanction, regardless of any breach of a legal or employment obligation, for releasing information on wrongdoing, or that which would disclose a serious threat to health, safety or the environment, as long as they acted in good faith and in the reasonable belief that the information was substantially true and disclosed evidence of wrongdoing or a serious threat to health, safety or the environment . Section 41 (1); in fact section 49 outlaws the obstruction of access to information. :criminal and civil responsibility :and miscellaneous provisions

FREEDOM OF INFORMATION BILL 2012 • It is an act of parliament to establish the Kenya freedom of information commission, to provide for access to information in the possession of public authorities; to provide for proactive publication and dissemination of information; and to effect article 35 of the constitution

ORGANIZATION • It is divided into seven sections namely : preliminary which gives a short description of the act : establishment, powers and functions of the commission :right to information :access to information :Internal review of decisions

Cont’ :financial provisions :miscellaneous

STRENGTHS • It is one of its kind in a nation dodged by multifarious challenges e.g. Corruption, transparency and accountability, development, poor infrastructure and social cohesion • It is a slight deviation from the FOI model; where as FOI model seeks to establish information offices in various public institutions and bodies charged with delivery of goods and services, the FOI bill 2012 seeks to establish a full fledged independent commission to deal with dissemination and circulation of critical information to the public

Cont’ • It is intended establish a feedback loop between the governor and governed that was started by the establishment of the Commission on Administrative Justice • If enacted it will enhance the circulation of correct information to the public since section 35 of the Bill contains a basic rule on correction of information; this is also reinforced by the data protection bill

Cont’ • Section 28 (1) places a obligation on public authorities to publish a statement updating their information at least annually • Section (1)e provides for transparency for meetings where decisions affecting the public are made • Section 30 places a caveat on the duration to be taken while responding to requests which is 15 days and any delay due to complexity of information should receive a maximum of 15 days extension

Cont’ • Section 26(3) posits that requesters are not required to give reasons for their requests and that public authorities may not be influenced in the way they process requests by their belief as to the reasons for those requests • Section 26(11) provides simply that it applies to the exclusion of any other law that prohibits the disclosure of information: this is a step in the right direction • Section 27(1) outlines exceptions as: national security, due process of law, life and safety of persons and rare species, privacy, legitimate commercial and financial interests, the ability of government to manage interests e.t.c

Cont’ • Section 26 (10) provides protection for any person against sanction for releasing information under the law in good faith; there is need however for these sanctions to be made clear; what are they? • Section 47 provides protection against any employment related sanction for whistleblowers and against legal sanctions against whistle blowing officials; :the complex nature of this area requires a law to be developed on whistleblowers

WEAKNESSES • that only citizens should be given access to information is inconclusive; foreigners do need information too • That the commission will be headquartered in Nairobi is also a challenge for people from areas with poor infrastructure; there is need for establishment of regional offices countrywide • The rule for access to information held by private institutions need to be established

Cont’ • There is a contradiction between section 13 where the chairperson and members of the commission shall be appointed for a single term of six years and the first schedule which states that the chairperson appointed shall serve for a term of five years and shall qualify for a final term of five years • That the commission shall be have four commissioners whose terms of office shall expire at the end of three years; and four other commissioners whose term of office shall expire at the end of five years from the date of appointment

Conclusion • Information is a basic necessity not a privilege THE END

STUDENTS’ FORUM ON ACCESS TO INFORMATION