Need to fast-track freedom of information legislation

On September 28, 2002, freedom of information organisations from around the world met in Sofia, Bulgaria, and created a network of Freedom of Information Advocates, who resolved to collaborate in promoting the individual right of access to information and open, transparent governance, and proposed September 28 be designated as International Right to Know Day.

Today, on the occasion of the 12th anniversary of that declaration, it is useful to reflect on how far the movement on the right to information has advanced, both internationally and here in Kenya.

Sweden enacted the first freedom of information (FOI) legislation in the world in 1766.

There followed a long lull before countries like Finland, Australia, Canada, the United States, and the Netherlands, enacted freedom of information laws between 1950 and the early 1980s. By 1990, there were only a handful of such laws around the world.

Today, 20 years later, there are more than 70 countries with FOI laws. Kenya is one of them, having passed a constitution in 2010, clause 35 of which guarantees the right to information.

There are philosophical debates about the basis of the right to information, none of which disputes the fact that the information held by officials belongs to the public and access to such information is an underpinning of democratic practice and also an extension of the freedom of speech.

Article 19 of the UN Charter of the Universal Declaration of Human Rights declares the right of every person to seek and impart information, thus making this a right under international law.

CONCRETE COMMITMENTS

Inter-governmental organisations have become more aware of the right to information to which they are now paying greater attention.

For example, the Open Governance Partnership (OGP) is a multilateral initiative founded in 2011, which aims to secure concrete commitments from governments to promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance.

Membership of OGP is open to governments and, since its launch, 65 countries, including Kenya, have joined.

By joining OGP, governments “commit to promoting increased access to information and disclosure about governmental activities at every level of government” and also “to pro-actively provide high-value information, including raw data, in a timely manner, in formats that the public can easily locate, understand and use, and in formats that facilitate reuse.”

On its part, the World Bank launched the Global Partnership for Social Accountability (GPSA) which supports civil society and governments to work together to solve critical governance challenges in developing countries.

Among the approaches that the GPSA employs is to provide support to civil society organisations and governments for social accountability initiatives aimed at strengthening transparency and accountability, thus also emphasising freedom of information.

The explosion of FOI laws reflects increased global awareness about this right, and is testament to the success that information activists have had.

STILL WORK TO BE DONE

In Kenya, although the recognition of access to information as a constitutional right was rightly celebrated as a major achievement, there is still work to be done.

The greatest remaining gap is to enact legislation that would provide details on how the constitutional right is to be exercised.

The search for FOI legislation predates the enactment of this right into the constitution.

The Kenyan Section of the International Commission of Jurists led civil society work in this area, managing twice to support the tabling of a private Bill in Parliament for the enactment of an FOI law.

Since he came to office, the Cabinet Secretary for Communication, Dr Fred Matiang’i, has promised the prioritisation of FOI legislation, and has championed the approval of the draft FOI Bill by the Cabinet recently. What remains to be done is to publish and then move the Bill through the legislature.

Experience from other countries shows that the inclusion of a right to information in the constitution is never enough and that there has to be implementing legislation for the right to work.

An FOI law would define the practical parameters of the constitutional right, clarify the duties of government officials who have to facilitate the right, and provide mechanisms for managing grievances where information requests are delayed or denied.

Challenges will still persist even after the enactment of a law. The experiences of the open data portal, launched by the government in 2011 as a signature of its commitment to openness, provide a microcosm of the issues that remain to be tackled even after the enactment of an FOI law.

The government portal has been criticised as static, stale and uninteresting, and has not been updated for more than two years.

Overcoming the ingrained culture of secrecy in public affairs will remain a big challenge that an FOI law alone cannot overcome.

Encouraging proactive disclosure, which an FOI law should do, and which the portal attempted, will not be easy.

A campaign promoting the practical realisation of transparency must, therefore, continue even after an FOI law is passed.

Further, record-keeping and archives management have a direct effect on the capacity of the government departments to meet obligations to provide information.

The implementation of devolution is both an opportunity and a challenge in giving effect to this right. To be clear, an FOI law should bind both the national government and county governments.

The clamour by counties for more funding makes a right to information at the county level an important issue.

However, the relative lack of voice at the county level will undermine the realisation of this right.

While efforts by the government towards freedom of information are commendable, there is still a lot to do to make this a practical right.

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