Access to information blocked
3 months ago, 8 Dec 00:32
On November 15, the Supreme Court ordered the IEBC to provide parties in the Presidential Petition No 4 of 2017 with a certified copy of the voters' register and to allow petitioners access to all original copies of Forms 34A, B and C. In a response letter, the IEBC demanded the petitioners pay an exorbitant amount of Sh80 million for a copy of the register. This was in direct contradiction of the Access to Information Act, 2016. The Act gives citizens a right of access to information held by the state and obligates all public entities to only charge requesters a fee not exceeding the actual costs of making copies of the required information available. The law requires the Cabinet Secretary to make regulations on certain matters to guide implementation, including the cost of providing information. More than a year after the Act was passed, the Information, Communications and Technology CS is yet to make regulations to guide on implementation. The lack of regulations hampers access to information as in their absence, public entities can arbitrarily set exorbitant costs to provide information. This means that access is still at the discretion of the entity being requested for information, and not, as per the provisions of the Act. The demand by the IEBC went against the rationale and spirit of the ATI Act, which is that individuals should not be prevented from making requests for information by charging deterrent costs. Section 12 the ATI Act 2016 on costs states: (1) No fee may be levied in relation to the submission of an application. ( 2 ) A public entity or private body from which an application for access to information has been made may charge a prescribed fee for the provision of the information and the fee shall not exceed the actual costs of making copies of such information and if applicable, supplying them to the applicant. ( 3 ) Subject to subsection ( 2 ), the Cabinet Secretary shall make regulations prescribing the fees payable for expenses incurred in providing information to an applicant. Additionally, the lack of regulations further impedes access to information for citizens since public entities are not proactively disclosing information as per the law. The regulations are supposed to direct public entities on how to adopt a progressive realisation of Section 5 of the Act on proactive disclosure while keeping in mind Section 6 on limitations of right to access to information. Most public entities interpret the lack of regulations as meaning that the law is not yet operationalised. There are other disadvantages of not having regulations to accompany the access to information law. First, some unclarity about private and public entities will persist. Second, without guidelines, the limitations to access, such as on grounds like commercial interests and national security will be wrongly interpreted, denying citizens access to information. The Constitution lists transparency as one of the national values and principles of governance. All state organs, state officers and public officers are bound by the Constitution to abide by these values when interpreting the law and when making public policy decisions. The enactment of the Act on August 31, 2016, was heralded globally as entry into a new transparency phase in Kenya’s public governance. The trend to enact access to information legislation while delaying the formulation of regulations to guide implementation has other precedents in the region. Uganda adopted a Right to Information law in 2005, but only adopted regulations in 2011. Ethiopia’s Proclamation to Provide for Freedom of the Mass Media and Access to Information was passed in 2008, but regulations have not been adopted to date. In a separate incident highlighting the need for regulations around constitutional provisions, the High Court in Nairobi in July ordered the IEBC to start afresh the tendering process for the presidential ballot papers for lack of public participation. The commission appealed the nullification and sought directions from the court regarding guidelines on how to carry out public participation. It is however commendable that the Ministry of Devolution and Planning, in collaboration with the Council of Governors, launched the County Public Participation Guidelines in January 2016. Enacting regulations will be the first step in instituting change on how public officials handle information held by their offices. With regulations in addition to the law, public authorities will be hard-pressed to manage their records better and to make public institutions more accessible through proactive disclosure. Out of 55 countries, 16 constitutions expressly guarantee access to information. 22 countries have Right To Information laws.
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