[kictanet] is FOI a milestone for freedom of expression in Kenya?

Wed Jun 6 11:01:14 EAT 2007

the MPs are in Mombasa discussing the FOI,
i know we are following discussions keenly but here is an analysis by a kenyan journalist which i hope will help shed some light,

please read and comment

FOI: A MILESTONE FOR FREEDOM OF EXPRESSION 
  By Vincent Lempaa
  Freedom of Information Policy, if finally becomes a law or a statutory instrument in Kenya will be   a big millstone for not only the freedom of expression but freedom to know as well.

   From the outset it is worth noting that our former colonial masters- United   Kingdom published its White Paper on freedom of information in 1997 which eventually became a law in the year 2000 but was fully implemented   2005.
  The government for the first time in the history of the United Kingdom intended that the citizens should have a legal right to information and the records in which that information is contained. In addition an independent Information commissioner was appointed who is answerable not to parliament but the court. 

  Just like the Kenyan Legal System has been substantively influenced by the English Legal System so is the Kenya’s policy document is influenced by the freedom of information act 2000. If the document, as prepared by the Information Ministry becomes a law or a statute it will resemble the English 2000 Act not only in form but also in content.

  It is expected that if it becomes a statutory instrument, it will supersede the existing documents related to the information in Kenya such as the National Archives and Documentation Act,   the Records Disposal Act and the Official Secrets Act. 

  In its preamble, the Access to Information Policy ( 3.1.1)   the document is couched in very liberal terms like facilitating citizens with greater communication with public bodies and increasing participation in the Democratic Processes and Nation Building. Indeed citizens will have wider access to information subject to “harm test’’. 

  The document, if it sees the light of parliamentary calendar will definitely open up the processes of government but the “harm test” as it is applied in the  so called liberal democracies is likely to be more strict in Kenya for  obvious reasons that ours is a nascent democracy unlike the  West. 

  By way of an introduction s. (3.2) states that: There will be some consultation that will not be accessible not to fetter the operation of those institutions.  How narrow or wide such clauses will be interpreted can have an equally high degree of fettering the freedom to know.

   It is to be assumed the  meaning to be accorded to such words as  public bodies will be as wide as the one used in determining what they really are in the judicial review given the document  chooses judicial review  remedies as the best to vindicate any infringement on freedom to know.

   S. (3.6) provides for the procedure of handling application but it is cast in such general terms: application for access to documents shall be handled promptly. How prompt is prompt will be the underlying question is this situation. 

  This is to be compared and contrasted with the specific terms that characterize the English Freedom of Information Act 2000. Request must be in writing and the authority is under duty to respond to the request within 20 working days of its receipt.   
  The provision of s. (3.10.1) is specifically express that private bodies that carry out statutory functions and those that are contracted out by the public organizations are within the bill. This distinction is crucial given the type of problems of interpretation it has continuously created in courts for the purposes of the judicial review remedies.

  By s (3.11) - The reuse of Public Information. The minister, guessing it is the information minister is given discretion to - issuing regulations regarding access to public information for the purposes of commercial exploitation.  

  How reasonable such discretion will be exercised by the minister is everybody’s guess. It would also be better if the  bill stated expressly under which circumstances do records become value- less and non current as per the provisions of s (3.13.1) for the purposes of destruction.  

  The provisions on National Security, Defense and International Relations are cut and paste of the Freedom of Information Act 2000 and critics and scholars have been at pains with its wide and ambiguity.

   They have argued that such terms are prone to abuse by the executive arm of the government.  In our situation, the Bill does not try to define them and it can only be concluded that parliament will be creating an assailable discretion on the executive to decide on the remits of such words.
  By s (3.14.4) the freedom of Information Act shall uphold the right of personal privacy.   This is to be welcomed as it will protect the vulnerable members of the societies from the excesses of the media in the behest of freedom of expression. 
  On Review and Appeal the Bill is also a copy cut of the FIA 2000. The proposed office of information commissioner is and his powers and functions are akin to those of the same institution as it abstains in England. 

  The Bill, by s. (4.3.4) attempt to oust any parliamentary or executive power upon the commissioner.  The provision, good as it sound, raises some constructional questions. 

  The provision that the commissioner will only be answerable to Court hence judiciary ousts the power of the people expressed through elected representative.  

  The judiciary will have control of such an important office and it is not an elected body and in theory they are not answerable to the electorate.

  On the rights of appeal as per the provision of s (5.4). This section is somewhat ambiguous. It bars individual from appealing against the decision of the information commissioner in Court. One is left wondering whether representative groups are also barred. 

  Besides, Freedom of information is about interests that are normally christened as fundamental rights. Much as judicial review procedures are thorough they have their inherent limitations like the standing –locus standi Public and private law exclusivity rules and other strictures as time limitation. 

  As a fundamental right- freedom of expression, the bill would have not limited review to judicial review.

   Individuals’ rights and those of representative groups will be better protected if they had several ways of accessing justice like constitutional reference that are not fettered by excessive procedures. 

   By and large Freedom of information Bill as drafted is an ambitious project and when it eventually becomes an act it will a big steps towards much cherished freedom of expression.  

  This will be more so for the so called forth estates that works for gain from processing and disseminating information.  

  There will be more accurate reporting as journalist and editors will base their reports on facts and not speculations. This will in turn reduce the high number of defamation suits that have crippled some of the media houses. 

  However the experience in the United   Kingdom shows that this is not likely to happen quickly as the media would like it to be. In the United Kingdom a Bill that was published in 1997 was implemented eights years later 2005.  

  This delay attracted more criticisms that overshadowed the discussion of the content of the Bill        
  Ends                 

Rebecca Wanjiku,
journalist,
p.o box 33515, 
Nairobi.00600
Kenya.

Tel. 254 720 318 925

blog:http://beckyit.blogspot.com/

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