in bill of rights, law, Learning

Sometimes I write about my interpretation of the law, bills and policy documents that come from the government and various other stakeholders. I’m not a lawyer and I’ve never studied law but as a citizen of this country I’m allowed to comment on these things. It’s my constitutional right. Consider that the disclaimer.

Access to Information -A2I

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One of the bills that I’m particularly excited to see passed is the Access to Information Bill(referred to henceforth as A2I which is so much cooler) which just went through it’s 2nd reading in parliament. This bill codifies our constitutional right to access of information found in Article 35 of the Kenyan Constitution. Which states:

(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 publicize any important information affecting the nation.

You can read about all the benefits that this bill will provide Kenyans in this post by John Walubengo or this one by Article 19 East Africa to find out how it benefits business. To put it broadly, all information the government has, with some caveats of course like national security, privacy, should be freely provided to the citizenry. The way this law is written I expect that you should be able to get information about everything that goes in within Ministries such Sports, Agriculture, Lands, Irrigation and Mining not to mention county governments. The days of hiding behind the Official Secrets Act, a law passed in 1968, are numbered.

Also under this law every record the government has will have to be digitised within 3 years of this bill being signed into law. From Part III: Access to Information, Section 17: Management of records, Subsection 3, c:

Not later than three years from the date from which this Act begins to apply to it, computerize its records and information management systems in order to facilitate more efficient access to information.

But that’s not to say there aren’t some issues I found with the bill.

Part III: Access to Information, Section 9: Processing of Applications subsections 4 and 5 state:

(4) Where the applicant does not receive a response to an application within the period stated in subsection (1)[This is within 21 days of receiving the application], the application shall be deemed to have been rejected

(5) An information access officer who fails to respond to a request for information within the prescribed time commits an offence and is liable, on conviction, to a fine not exceeding fifty thousand shillings or imprisonment for three months, or to both

My problem is actually with subsection 4 but 5 is need to make my point. Subsection 4 says that if you get a response to your A2I request after 21 days you can consider it denied while subsection 5 says that an officer will be punished for not responding. My question is how can the public know that their request has been denied and it’s not just the officer refusing to working on it if s/he doesn’t explicitly respond with that denial? If a non-response is a response… Are we to trust the officer to report themselves? I think this section leaves a loophole that some choose to take advantage of. It also needs a section that an A2I officer need together with their denial give the reason that denial was made so that it’s clear why it was done to the applicant and can be used on appeal.

Part IV: Review of Decisions by the Commission, Section 14: Review of Decisions by the Commission, subsection 2 states:

An application under subsection (1)[If you feel the decision made on your A2I request was wrong or was not properly acted on] shall be made within thirty days, or such further period as the Commission may allow, from the day on which the decision is notified to the applicant.

My issue with this section is the phrase “ or such further period as the Commission may allow” I think gives the commission to much leeway in deciding on when to make a review of an application and should be deleted so that reviews will be completed within 30 days.

Those were the only two things I had a problem with otherwise I think it’s a fantastic bill. Do you have any issues with it? Do you plan to make use of the rights this law will allow you? How? Let me know in the comments below. Peace!!!