Last week, something very significant took place in Parliament - even though it was rather quiet. The Access to Information Bill, presented by Hon Priscilla Nyokabi MP, went through its Second Reading.
It is not normal for governments, particularly in developing countries with emerging democracies, to sponsor Bills that are likely to expose their internal decision-making processes to the public, which is precisely why the Access to Information Bill has been hovering around Parliament for the better part of this century with little chance of discussion, let alone enactment.
However Article 35 of the 2010 Constitution, titled ‘Access to Information’ seems to have finally given impetus to bill since it states as follows:
(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.
Enacting Article 35, which this Bill seeks to do, will have a huge impact on how information flows between government, private entities and citizens. Most government departments would prefer to hide under the Official Secrets Act of 1968, rather than disclose information, which is why the Open Data initiative has struggled to gain traction; bureaucrats believe they own public data and are prevented from sharing it by the Official Secrets Act.
Contrary to popular opinion, data that is collected, analysed and stored using taxpayers’ money belongs to the citizens; government officials are simply its custodians.
Whereas governments are entitled to secrets, most developing democracies abuse this privilege to declare anything and everything a ‘state secret’ in order to suppress, control or simply misinform the citizenry.
The Access to Information Bill in particular repeals notorious sections of the Official Secrets Act and sets in place procedures with which government officials would proactively and regularly disclose information that is of public interest.
PRIVATE ENTITIES COVERED
Imagine information surrounding the mysterious deaths of Pio Gama Pinto, Tom Mboya, Ronald Ngala, JM Kariuki, Robert Ouko, amongst others, being de-classified and made available to the public.
The Bill anticipates this and mandates the government of the day to automatically release such information 30 years after the event, unless it can convince a court that such a release would compromise national security.
But more importantly, rather than just releasing historical information, the Bill empowers any citizen to request any contemporary information held by state and private entities and expect a response within three weeks.
Private entities as defined by the Bill include:
(a) any private entity or non-state actor that receives public resources and benefits, utilizes public funds, engages in public functions, provides public services, has exclusive contracts to exploit natural resources (with regard to said funds, functions, services or resources); or
(b) is in possession of information which is of significant public interest due to its relation to the protection of human rights, the environment or public health and safety, or to exposure of corruption or illegal actions or where the release of the information may assist in exercising or protecting any right;
Failure by the entity concerned to respond within the set timelines is an offence punishable by a fine not exceeding Sh50,000 or three months in prison or both.
This should be music to ears of the media, who have in the recent past been under undue pressure from some government ministers to reveal their sources in matters suspected to be of corrupt nature.
TAMPERING WITH, ERASING OR ALTERING
The Bill does, of course, protect and exempt some information from disclosure. But, unlike the Secrets Act of 1968, the scope of what is to be exempted is clearly defined, not left to the whims of privileged individuals in power.
Furthermore, citizens have an avenue to appeal against decisions that withhold information, if they feel the information sought does not really meet the pre-defined threshold of national security.
The Bill also gives protection to whistleblowers, both in government and the private sector, who wish to disclose information that they feel is of public interest yet is being deliberately hidden or abused for private gain. Matters related to Imperial Bank, Anglo Leasing, Goldenberg and their variations quickly come to mind here.
Another key section of the Bill mandates all public and private entities that keep information of interest to the public to install and maintain modern information systems in order to facilitate quick access to information as and when it is requested by citizens.
It further criminalises any action that leads to tampering with, erasing or altering of public information with a view to providing inaccurate information to those who request it.
This Bill, if enacted in its present form, may actually prove to be the silver bullet required in the fight against corruption.
Now that it is finally before Parliament, only time will tell if it will eventually reach State House and get the Presidential assent it needs to become law.
Mr Walubengo is a lecturer at the Multimedia University of Kenya, Faculty of Computing and IT. [email protected], @jwalu