Sallient Features of the Access to Information Act 2016

The Right to access Information is inherent in democratic functioning and is a precondition to good governance and realisation of all other human rights, including education and health care that have intense and pervasive impact on all the human activities. Specifically, the main objectives of Kenya’s Access to Information Act 2016 are: to operationalise the fundamental Access to information; to set up systems and mechanisms that facilitate people’s easy access to information; to promote transparency and accountability in governance; to minimise corruption and inefficiency in public offices and to ensure people’s participation in governance and decision-making.

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.

A duty has been cast, in section 5 of the Act, on every public authority to suo motu provide to the public with the information as prescribed therein, so that the public has to take minimum recourse to the use of this legislation for obtaining information. The procedure of securing information as provided in section 8 of the Act, prescribes a procedure which is very simple. A citizen has to merely make a request to the concerned Access to Information Officer specifying the information sought by him. The cost for access to information is reasonable. According to sections 4(3), 5(3) and 12 of the Act, there is no fee for submission of an application or inspection of documents. However, reasonable fee will be charged for photocopying the actual cost of making copies of the required information and if applicable, supplying them to the applicant.

To assure that the information sought is provided quickly, section 9 of the Act, makes it mandatory for the Access to Information Officer to provide the information within 21 days of the receipt of the application. If the information requested concerns the life or liberty of a person, it has been made mandatory to provide it within 48 hours of the receipt of the request. The Act provides for penalties in case of failure to provide information in time, or for refusing to accept an application for information, or for giving incorrect, incomplete or misleading information, or destroying information, and so on. In addition, the Commission on Administrative Justice has also been empowered to recommend disciplinary action against offending public officers.

By dint of Section 7 of the Act, a chief executive officer of a public entity is the Information Access Officer and may delegate this responsibility to any other officer of the public entity (also applies to a private body). The officer receives requests for access to information, develops ways of assisting applicants to access information and processes applications for access to information within the set timelines under the Act.

The Commission on Administrative Justice has a major role to oversee and enforce the right to access to information under the Act as well as public education. The main specific functions of the Commission under the Act are:

• Investigate complaints from the public or on its own motion of violations of the Act;

• Hear and determine, and review decisions arising from violations of the Act;

• Monitor implementation of the Act through consideration of reports from public entities and private bodies on implementation of the Act;

• Develop and facilitate public education programmes;

• Monitor Kenya’s compliance with its international treaty obligations relating to access to information and data protection;

• Promote protection of data;

• Work with public entities to promote the right to access to information, and with regulatory bodies on promotion and compliance with data protection measures; and

• Submit annual and special reports to Parliament and the Cabinet Secretary for information on the status of implementation of the Act.

Additionally, public entities and private bodies are obligated under the Act to:

• Ensure proactive disclosure of information held by them

• Process applications for access within the set timelines at reasonable cost (if any)

• Give notification of the designated Access to Information Officer

• Correct personal information held by them which is out of date, inaccurate or incomplete within reasonable time upon application.

• Keep and maintain accurate, authentic and credible records.

• Computerise their records and information management systems within three years from the date of commencement of the Act (that is by 21st September 2019) in order to facilitate more efficient access to information.

• Submit reports to the Commission on Administrative Justice (the Commission) on implementation of the Act by 30th June of every year or at any time as required by the Commission

• Co-operate with the Commission in the implementation of the Act.

The Act advances the constitutional principles of accountability, transparency, public participation and efficiency in service delivery, which are the hallmarks of good governance. It opens up the government and trust in public administration as well as fostering better understanding of decision making by the Government. Indeed, section 16 of the Act provides for protection of disclosure in public interest of information relating to violations of the law, corruption, abuse of public office, mismanagement of public funds and conflict of interest among others. To this end, the Act provides a critical role in the fight against impunity in Kenya.