Access to information law important in fight against rampant graft

In February this year, the High Court made a significant determination that is likely to bolster efforts to prevent the looting of public resources. In his ruling, Justice Chacha Mwita held that some sections of the Public Audit Act 2015 were unconstitutional because they curtailed the powers of the Auditor General to audit how security organs spend the billions of shillings at their disposal.

The significance of the ruling will prove an important milestone in the quest to entrench transparency and accountability in the use of resources available to State agencies.

In the past few months, the country has stumbled from one scandal to another involving blatant disregard for procurement regulations, public finance management laws and outright theft of money.

Whereas Kenyans continue to express outrage over these sickening revelations of grand theft of billions of shillings in different State corporations and departments, there is an important piece of legislation that is a critical ingredient to stopping corruption cartels.

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The Access to Information Act 2016 gives effect to Article 35 of the Constitution, which provides every citizen the right of access to information held by the State or any other person and which is required for the exercise or protection of any right or fundamental freedom.

Obligates State

The law further obligates the State to publish and publicise any important information affecting the nation. This is important in entrenching the cause for transparency in the procedures and operations of Government ministries, departments and agencies.

The Commission on Administrative Justice (Office of the Ombudsman) has been assigned the responsibility of overseeing and enforcing implementation of the law among public entities and some private companies.

The law, which came into force in September 2017, affords citizens an opportunity to play an active role in oversight of public funds and engage in informed public debates whose net effect is to improve service delivery and value for money.

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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.

Kenya’s media has consistently played a positive role in uncovering ills bedevilling the public service and this new law is a welcome addition to its ability to report on matters of public interest.

In its wisdom, Parliament passed the law with a provision to protect people who in good faith provide information in public interest (whistle-blowers); this is an important provision that could aid the work of the media in playing its watchdog role, particularly in uncovering any violations of the law.

In addition to the protection of whistle-blowers, the law obligates the State and its agencies to proactively disclose information to citizens, not necessarily waiting for members of the public to file requests for such information.

This requirement of proactive disclosure is articulated in the Constitution, Article 35(3), which provides that “The State shall publish and publicise any important information affecting the nation.”

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Some of the categories of information that public entities are required to proactively disclose include: procedures of decision making including channels of supervision and accountability; financial information including salary grades of officers by grade; policies and procedures, and contracts entered.

Significantly, the information public bodies are required to disclose under contracts entered is key to fostering transparency and accountability in their dealings.

They are expected to publish on their websites such information as public works undertaken, goods acquired or rented, services contracted, scopes of service and terms of reference, contract sums, names of service providers or contractors, and period within which contracts should be completed.

This is the first time public organisations have been required to bring down the long-standing veil of secrecy and be open and accountable in dealings with members of the public.

Public education

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In discharging its mandate of overseeing implementation of the Act, the Office of the Ombudsman has carried out public education and awareness campaigns, and trained hundreds of county and national government officers in performance contracting for purposes of reporting their compliance.

Unfortunately, Kenyans have been slow in taking advantage of this law to enhance public scrutiny of Government as evidenced by the fact that in the past one year the commission has received slightly more than 50 complaints relating to failure by State agencies to provide information requested.

As a start, we should make the wealth and liabilities declaration forms of all public officers part of the information that public entities proactively disclose on their websites. This way, whatever each public officer owns can be tracked over time. This would greatly benefit the war against corruption.

Mr Cheboi is an advocacy and communications manager in the Office of the Ombudsman

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