Access to Information crucial in Decision Making

The Access to Information law in Kenya gives effect to the right of access to information under Article 35 of the Constitution. it obligates public entities and certain private bodies to facilitate access to information held by them. The Act came into force on 21st September 2016.

Information is central to human existence. As humans, all the decisions we make at personal, professional and political levels are usually based on the information available to us. The quality of such decisions often depends on the quality of the information that we have. If we have no information, we probably will not be able to make decisions and even if we attempt to make decisions in our ignorance, the quality of the decisions that we make would probably be very poor.

This is probably an overly simplistic way of trying to underscore the importance of access to information. But for me, it helps to demonstrate how totally dependent on information we are and why the right of access to information is a fundamental right. I believe it also helps to illustrate the fact that in terms of information held by public bodies, citizens will never be able to play any meaningful role in governance if they do not have access to reliable and quality information.

Access to information Act has the potential to assist in reducing the information asymmetry between citizens and governments, and contribute to public accountability by enabling the watchdog function of the media. Although combating corruption and promoting good governance have been a primary focus of access to information legislation, it is also important to consider the wider benefits of enabling people to make better informed social and economic choices – that is, the knowledge function of this right.

Th access to information is based on the following key concepts: the right of the public to access the information and the corresponding duty of the government to meet the request, unless specifically defined exemptions apply; and the duty of the government to proactively provide certain key information even in absence of a request.

The Act promises to make the access to Information more progressive, participatory and meaningful, as it encourages the common citizen to enthusiastically participate in the whole process of governance. Th citizens are not only free to ask for information from the Government, but also have the right to get it. Th scope of the Act extends to all authorities and bodies under the Constitution or any other law, and inter alia includes all authorities under the National Government, County Governments and selected Private entities.

From the perspective of sustainable development, we also have to be conscious of the many other obstacles to access to information for people experiencing poverty and marginalization. The law is necessary, but by itself it is not a sufficient remedy. The obstacles include low levels of education and literacy, poor communications and transport infrastructure, cultural and language barriers and discrimination based on gender, class, ethnicity or other factors.

The right of access to information applies to all information held by public bodies, and this includes information collected from private bodies. International and comparative standards have not yet defined the extent to which the Right to access Information applies directly to private bodies. In the meantime, the onus is on governments to collect sufficient information from the private sector so that people can have the information necessary for defending other rights. This information should be collected in sufficient detail so that it can be of use to the public.

It is also not enough to simply require that information should be available. It has to be made available in a timely fashion so that people can put that information to use and participate in the decision-making processes. The Right to Information cannot be simply about facilitating a retroactive exercise in accountability. The Right to access Information should be regarded as a right to life. The availability of relevant and timely information is essential for individuals and communities in exercising this right, and in protecting their lives from harmful and threatening situations and events.

In access to information law there is a consensus that proactive disclosure is not only essential but perhaps even the most important element of the legislation. However, defining proactive disclosure is a difficult process which should involve end-users. In order for a successful implementation of the access to information, a wide range of bodies, including private bodies, should be involved. Perhaps the focus should be on extending the obligations of compliance and information disclosure to include not only governments, but also private companies who undertake public functions or whose activities impact on the natural resources of a country.

The Access to Information law should also advocate a balance between forcing and encouraging disclosure. The idea is not to constantly penalise the administration but rather to encourage a culture of openness and to convince governments and civil servants that openness is good for them.